Grieco v. Cunningham

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Underwood, J.), entered August 16, 1985, which was in favor of the defendant and against them, upon a jury verdict.

Ordered that judgment is affirmed, with costs.

The plaintiffs claim that the trial court erred in directing production of two written statements, one made by the plaintiff Vincent Grieco before trial and one made by a plaintiffs’ witness, as these writings were privileged as attorney’s work product and pursuant to the attorney-client relationship (see, CPLR 3101 [b], [c]). We disagree.

Any privilege under CPLR 3101 was waived when Vincent Grieco used his written statement prior to his deposition to refresh his recollection as to the events of the incident, and when the plaintiffs’ witness reread her statement prior to the trial for the same purpose. The defendant was thus entitled to have the statements made available to him and to use them in cross-examination (see, Merrill Lynch Realty Commercial Seros, v Rudin Mgt. Co., 94 AD2d 617; Herrmann v General Tire & Rubber Co., 79 AD2d 955; Doxtator v Swarthout, 38 AD2d 782; see also, Richardson, Evidence § 467 [Prince 10th ed]; 3 Wigmore, Evidence §§ 762, 763 [Chadbourn rev]).

We have reviewed the plaintiffs’ other claim and find it to be without merit. Mangano, J. P., Bracken, Brown and Spatt, JJ., concur.