Supreme Court, Queens County, New York,
Special Term, Part I.

FREE SYNAGOGUE OF FLUSHING et al., Plaintiffs,
v.
BOARD OF ESTIMATE OF the CITY OF NEW YORK et al., Defendant.


May 24, 1968.


 Action to declare illegal and invalid a zoning amendment wherein defendants
moved for protective order vacating plaintiffs' notice of taking deposition
providing for examination of city planning commission.  The Supreme Court,
Special Term, J. Irwin Shapiro, J., held that, even though decisions of city
planning commission were not in and of themselves binding or determinative,
function which it exercised was legislative in character and commission could be
examined by its chairman as to purpose of zoning amendment adopted by commission
and as to studies, investigations and planning made prior to enactment of
amendment, but examination before trial as to motives inducing legislative
action would be improper.

 Motion for a protective order granted only to extent of requiring commission to
be examined by its chairman within guidelines set forth.


West Headnotes

[1] Pretrial Procedure  171
307Ak171 Most Cited Cases
    (Formerly 127k39  Discovery)

Even though decisions of city planning commission were not in and of themselves
binding or determinative, function which it exercised was legislative in
character and commission could be examined by its chairman as to purpose of
zoning amendment adopted by commission and as to studies, investigations and
planning made prior to enactment of amendment, but examination before trial as
to motives inducing legislative action would be improper.

[2] Pretrial Procedure  27.1
307Ak27.1 Most Cited Cases
    (Formerly 307Ak27, 127k40, 127k88, 127k89  Discovery)

[2] Pretrial Procedure  31
307Ak31 Most Cited Cases
    (Formerly 127k41  Discovery)

Statute providing there shall be full disclosure of all evidence material and
necessary in prosecution or defense of action, regardless of burden of proof,
requires disclosure upon request of any facts which will assist preparation for
trial by sharpening issues and reducing delay and prolixity.  CPLR 3101(a).

[3] Pretrial Procedure  273
307Ak273 Most Cited Cases
    (Formerly 127k40, 127k41  Discovery)

Test of whether information sought by interrogatory is "material and necessary"
to prosecution or defense is one of usefulness and reason.  CPLR 3101(a).

[4] Pretrial Procedure  31
307Ak31 Most Cited Cases
    (Formerly 127k40, 127k41, 127k88, 127k89  Discovery)

Statute providing there should be full disclosure of all evidence material and
necessary in prosecution or defense of action, regardless of burden of proof
should be construed to permit discovery of testimony that is sufficiently
related to issues to make effort to acquire information in preparation for trial
reasonable.  CPLR 3101(a).

[5] Pretrial Procedure  102
307Ak102 Most Cited Cases
    (Formerly 127k47  Discovery)

Where plaintiff sought to set aside decision of city planning commission
adopting zoning amendment on ground that affirmative vote of four members was
required to take action and the fourth vote, which was cast by chairman, was not
valid because he was not member of city planning commission at time of public
hearing, he did not have transcript of hearing and he was not acquainted with
area, city planning commission should produce chairman in the first instance for
examination before trial requested by plaintiffs.

[6] Pretrial Procedure  101
307Ak101 Most Cited Cases
    (Formerly 127k49  Discovery)

Corporation to be examined as adverse party may produce those officers or
employees having knowledge of facts under inquiry and choice of witnesses does
not rest in first instance with examining party.

[7] Pretrial Procedure  102
307Ak102 Most Cited Cases
    (Formerly 127k49  Discovery)

Choice of witnesses in examination of municipal corporation as adverse party
does not rest in first instance with examining party unless special
circumstances are shown.

[8] Pretrial Procedure  100
307Ak100 Most Cited Cases
    (Formerly 127k47  Discovery)

Generally, choice as to which of party's representatives is to be submitted for
examination is in first instance with party to be examined but mere fact that
person is designated in notice of examination does not require court to vacate
or modify notice.

[9] Pretrial Procedure  101
307Ak101 Most Cited Cases
    (Formerly 127k49  Discovery)

Where it appears that person designated to be examined is one most likely to
have knowledge of facts upon which examination of corporation is to be had and
there is no claim that some other person has superior knowledge and that
corporation has not offered to produce such person with superior knowledge,
there is no objection to ordering designated person to appear.  CPLR 1023.

[10] Pretrial Procedure  124
307Ak124 Most Cited Cases
    (Formerly 127k48  Discovery)

Notice of taking deposition providing for examination of city planning
commission by its chairman was not defective because chairman and individual
members of commission were not named as parties in action to declare illegal
zoning amendment adopted by commission.  CPLR 1023.

[11] Pretrial Procedure  123.1
307Ak123.1 Most Cited Cases
    (Formerly 307Ak123, 127k54  Discovery)

Proper procedure for examining city before trial was service of notice of
examination.  CPLR 3102(b).
 **564 *81 Simpson, Thacher & Barlett, New York City, for plaintiffs, Roy L.
Reardon, and James J. Hagan, New York City, of counsel.

 J. Lee Rankin, Corp. Counsel, for defendants, Board of Estimate of City of New
York, City Planning Commission of City of New York and Buildings Sup. of Borough
of Queens, Joseph Halpern, and Paul E. Wexler, New York City, of counsel.

 Dreyer & Traub, New York City, for defendants, Leonard Litwin and Martin
Swarzman, Samuel Kirschenbaum, New York City, of counsel.

 Hurley, Kearney & Lane, Brooklyn, for defendants, The Sisters of Saint Joseph,
John H. Kearney, Brooklyn, of counsel.


**565 MEMORANDUM

 J. IRWIN SHAPIRO, Justice.

 The fundamental questions presented on this motion are whether the City
Planning Commission may be examined and, if so, the scope of that examination.

 Defendants Board of Estimate of the City of New York, City Planning Commission
of the City of New York and Buildings Superintendent of the Borough of Queens
(hereinafter: defendants) move pursuant to CPLR 3103 for a protective order
vacating plaintiffs' 'NOTICE OF TAKING DEPOSITION' which provides for
examination of the City Planning Commission of the City of New York 'by its
Chairman, Donald H. Elliott, or some other member thereof having the requisite
knowledge of the facts * * * with respect to all facts material and necessary to
the prosecution or defense of this action.'

 This is an action to declare illegal and invalid a certain zoning amendment
adopted by the City Planning Commission on July 19, 1967 and subsequently
approved by the Board of Estimate on July 27, 1967 which reclassified certain
property in the Flushing area of Queens from a residential to a commercial
classification so that a major department store could be constructed on this
site.  Plaintiffs' challenge to the amendment is predicated on the grounds,
inter alia, (1) that it constituted spot zoning and was therefore an invalid
exercise of the police power, (2) the resolution of the Planning Commission was
adopted in violation of its own rules of procedure, relevant provisions of the
City Charter and the requirements of procedural due process and (3) the
subsequent approval by the Board of Estimate failed to comply with the
procedural requirements specified in the New York City Charter and the Federal
and State Constitutions.

 In support of their motion, defendants contend that the notice of taking
deposition should be vacated on the grounds that '(1) persons may not be
examined as to their motives when they are acting in a legislative capacity; (2)
the members of the *82 City Planning Commission are not parties in the instant
action; (3) a municipal corporation may not be examined without an order of the
Court'.  Defendants further contend that if the examination before trial is
permitted, the City Planning Commission in the first instance may designate the
person to be produced.  The defendants' opposition is predicated on the doctrine
that a person acting in a legislative capacity may not be examined as to his
motives. However, defendants also assert that since the Planning Commission is
an advisory body and its recommendations need not be followed by the Board of
Estimate, its examination will not elicit information which is material and
necessary.  (CPLR 3101.)

 **566 [1] The Appellate Division, Second Department, has permitted examinations
before trial in zoning cases and has set forth the scope for those examinations.  
In Reformed Church of Mile Square v. City of Yonkers, 8 A.D.2d 639, 185 N.Y.S.2d
983, which was an action for a judgment declaring an amendment to the Building
Zone Ordinance of the City of Yonkers invalid as 'spot zoning', the court
stated:
'An examination before trial as to motives inducing legislative action is
improper (cf.  Kittinger v. Buffalo Traction Co., 160 N.Y. 377, 387, 54 N.E.
1081, 1084; Homefield Assn. of Yonkers, N.Y. v. Frank, 273 App.Div. 788, 75
N.Y.S.2d 384, affd. 298 N.Y. 524, 80 N.E.2d 664), and in our opinion
subdivisions '4' and '6' permit such an inquiry.  However, while there may not
be an examination into the motives which move a legislative body in the exercise
of its legislative discretion, there may be an inquiry into the purpose of the
legislation (cf. People ex rel. Burton v. Corn Products Co., 286 Ill. 226, 234,
121 N.E. 574).  The examination, as herein limited, is permissible within that
rule, and is material and necessary on the issue of whether the purpose of the
challenged amendment was to benefit the individual property owner rather than to
promote the general welfare of the community pursuant to a wellconsidered,
comprehensive plan (cf.  Rodgers v. Village of Tarrytown, 302 N.Y. 115, 124, 96
N.E.2d 731, 735; General City Law, s 20, subd. 25; Civ.Prac. Act, s 292--a).'

 (See also, Point Lookout Civic Assoc.  Inc. v. Town of Hempstead, 8 A.D.2d 824,
190 N.Y.S.2d 209.) The Appellate Division, Second Department, has also allowed
examinations before trial in actions to declare void zoning ordinances as to
'studies, investigations and planning made by or in behalf' of town boards prior
to the enactment of the ordinances against which suit is instituted.  (See
Lakeville Merrick Corp. v. Town Board of the Town of Islip, 23 A.D.2d 584, 256
N.Y.S.2d 781; Mazzara v. Town of Pittsford, 54 Misc.2d 600, 283 N.Y.S.2d 165.)

 I am of the opinion that these rules apply with equal force to the City
Planning Commission.  In *83McCabe v. City of New  York, 281 N.Y. 349 at pages
352--353, 23 N.E.2d 529, at page 530, the Court of Appeals discussed the
character of the City Planning Commission.  The court stated:
'The new charter thus sought to relieve the Board of Estimate of some of the
more burdensome features of zoning law administration by making provisions for
them in a new city department known as the City Planning Commission.  To the
latter were committed the preparatory work on amendments and changes in the
zoning ordinance, as advisor in this particular to the Board of Estimate.  The
Planning Commission, either originally or at the **567 instance of a petition,
initiates a proposed zoning change, gives public notice of hearing, considers
arguments for and against or in modification, and finally adopts its own
resolution. This must then be filed with the Board of Estimate, which finally
determines whether the proposed change shall become effective. However useful
and arduous the duties and powers of the Planning Commission, they do not
include that of final determination.  This power and function resides in the
Board of Estimate.'

 The Appellate Division, Second Department, has stated:
'Generally, the exercise of zoning powers is a legislative function not subject
to review in an article 78 proceeding (Matter of Neddo v. Schrade, 270 N.Y. 97,
200 N.E. 657; Matter of Weers v. Whiton, 3 A.D.2d 924, 162 N.Y.S.2d 680;
Homefield Association of Yonkers v. Frank, 273 App.Div. 788, 75 N.Y.S.2d 384,
affd. 298 N.Y. 524, 80 N.E.2d 664).'  (Matter of Southern Dutchess Country Club
v. Town Board of the Town of Fishkill, 25 A.D.2d 866, 270 N.Y.S.2d 165, affd. 18
N.Y.2d 870, 276 N.Y.S.2d 121, 222 N.E.2d 739.)

 Similarly, it has been held: 'The power of the City Planning Commission and the
Board of Estimate to rezone property is legislative and, of course, different
from the administrative power of the Board of Standards and Appeals.'  (Matter
of Walsh v. Murdock, 15 Misc.2d 279, 281, 179 N.Y.S.2d 988, 990; see also Matter
of New York City Housing Authority v. Foley, 32 Misc.2d 41, 223 N.Y.S.2d 621.)
Accordingly, even though the decisions of the CityPlanning Commission are not in
and of themselves binding or determinative, the function which it exercises is
legislative in character and this court can see no reason why the rules
discussed above should not apply in actions against the City Planning
Commission.

 [2][3][4] Defendants contend, however, that since the City Planning
Commission's recommendations are not self-executing and are advisory in nature,
the examination of the City Planning Commission will not elicit information
which is material and necessary.  This court does not agree.  As was recently
stated by the Court of Appeals in Allen v. Crowell-Collier Publishing Co., 21
N.Y.2d 403, 406--407, 288 N.Y.S.2d 449, 452, 235 N.E.2d 430, 432:
'The words, 'material and necessary', are, in our view, to be interpreted
liberally to require disclosure, *84 upon request, of any facts bearing on the
controversy which will assist preparation for trial by sharpening the issues and
reducing delay and prolixity.  The test is one of usefulness and reason. CPLR
3101(a) should be construed, as the leading text on practice puts it, to permit
discovery of testimony 'which is sufficiently related to the issues in
litigation to make the effort to obtain it in preparation for trial reasonable'
(**568 3 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3101.07, p. 31--13).'

 Accordingly, examination before trial within the guidelines set forth above is
proper in this zoning matter.

 [5] Defendants contend, however, that plaintiffs' notice of examination is
improper insofar as it seeks examination of Chairman Donald H. Elliott on behalf
of the City Planning Commission, since in the first instance the Commission has
the right to choose the examinee.  This court does not agree. Plaintiffs seek to
set aside the decision of the City Planning Commission on the ground that an
affirmative vote of four members was required to take action and the fourth
vote, which was cast by Chairman Elliott, was invalid because Inter alia (1) he
was not a member of the City Planning Commission at the time of the public
hearing, (2) he did not have a transcript of the hearing and (3) he was not
acquainted with the Flushing area.  Plaintiffs predicate this cause of action to
set aside the decision of the City Planning Commission on the decision of the
Court of Appeals in Matter of Taub v. Pirnie, 3 N.Y.2d 188, 165 N.Y.S.2d 1, 144
N.E.2d 3, which was an action to set aside a zoning resolution by which the
Board of Appeals of the Village of Scarsdale granted a variance on the ground
that one of the members voting with the majority was not present at the public
hearing.  The Court of Appeals held that, although this member of the Board did
not read the transcript of the hearing and was not present at the hearing, since
the transcript was available to him and since he was familiar with the arguments
made at the hearing, his vote was proper.  Even though it has not yet been
decided whether the rules laid down by the Court of Appeals in Matter of Taub
(supra) apply to the decision of the City Planning Commission, which is an
advisory body, examination of Chairman Elliott, under the circumstances, is
proper for the following reasons:

 [6][7][8][9] This court is aware of the usual rule 'that a corporation to be
examined as an adverse party may produce those officers or employees having
knowledge of the facts under inquiry, and the choice of witnesses does not rest
in the first instance with the examining party.' (United States Overseas
Airlines, Inc. v. Cox, 283 App.Div. 31, 32, 126 N.Y.S.2d 209, 210; see also
*85Hansen v. City of New York, 283  App.Div. 891, 130 N.Y.S.2d 3.) This rule has
also been applied, with equal force, to a municipal corporation served with a
notice of examination.  (Halpern v. Cavanaugh, 208 Misc. 131, 143 N.Y.S.2d 133;
Martinez v. Union Free School District No. 4, 41 Misc.2d 661, 246 N.Y.S.2d 165.)
However, the rule may be varied where special circumstances are shown.  (Necchi
v. Nelco Sewing Machine Co., 23 A.D.2d 543, 256 N.Y.S.2d 347.) Since one of the
main subjects of inquiry at the examination before trial will be the conditions
surrounding Chairman Elliott's vote, special circumstances **569 are presented
and the City Planning Commission should produce its Chairman in the first
instance for examination before trial.  As was stated in Wallach v. Northeast
Airlines, Inc. (15 Misc.2d 762, 763--764, 181 N.Y.S.2d 949, 951):
'While the general rule is that the choice as to which of a party's
representatives is to be submitted for examination is, in the first instance
with the party to be examined (United States Overseas Airlines v. Cox, 283
App.Div. 31, 126 N.Y.S.2d 209, 210) the mere fact that a person is designated in
the notice of examination does not require the court to vacate or modify the
notice solely by reason thereof. Where it appears from the pleading and the
motion papers that the person to be examined is the one most likely to have
knowledge of the facts upon which examination is to be had and there is no claim
that some other person has superior knowledge and that the corporation to be
examined has not offered to produce such person with superior knowledge, there
would seem to be no objection to ordering the designated person to appear.'

 [10] Defendants' second contention, i.e., that the notice is defective because
Donald Elliott and the individual members of the City Planning Commission are
not named parties in this action is without merit.  Section 1023 of the CPLR
provides: 'When a public officer, body, board, commission, or other public
agency may sue or be sued in its official capacity, it may be designated by its
official title, subject to the power of the court to require names to be added.'  
Therefore, in Augostini v. Lasky, 46 Misc.2d 1058, 262 N.Y.S.2d 594, the court
granted the motion to amend the title of an action by striking the names of all
individual member defendants and substituting therefor the Broome County Board
of Supervisors as party defendant.  (See also 2 Weinstein-Korn-Miller, N.Y.Civil
Practice, s 1023.01.)

 [11] Also without merit is defendants' third contention that the proper
procedure to initiate the examination before trial of defendants was the making
of a motion and not the service of a notice of examination.  It is well settled
that under the CPLR the Proper procedure for examining the City of New York is
the service of a notice of examination.  (See CPLR 3102(b); see also Scheer v.
City of Syracuse, 41 Misc.2d 1060, 247 N.Y.S.2d 223.)

 *86 Accordingly, the motion for a protective order is granted only to the
extent of requiring defendant City Planning Commission to be examined by its
Chairman, Donald H. Elliott, within the guidelines set forth in this opinion,
such examination to be held at the office of the Clerk of Special Term, Part II,
on the fifth floor of this courthouse on a date and at a time to be specified in
the order to be entered hereon.

291 N.Y.S.2d 562, 57 Misc.2d 80

END OF DOCUMENT