This is an application by the claimant for an order directing the examination before trial of the State of New York “ by its agents, servants and employees familiar with the facts pertaining to the claim herein ”, and directing that the State of New York at such examination before trial “ produce all pertinent books and records ”. (Notice of Motion.)
This motion is identical with that simultaneously made in the claim of ‘ ‘ Edward P. McGrath, as Committee of the Person and Estate of Mary McGrath, an Incompetent person,” (Claim No. 30169, Motion 1808) which we have decided in an opinion bearing even date herewith (McGrath v. State of New York, 200 Misc. 165) and of which claim the instant claim is a companion one.
Upon the opinion aforementioned we grant upon this application the same relief, upon the same conditions and with the same directions as to the holding of the examination, as is in said opinion provided for, except that as to those matters which we have therein found to be privileged, claimant, Edward P. McGrath, individually, not having the legal right to waive the privilege, this application is denied without prejudice to renew (Civ. Prac. Act, § 1377; Matter of Handwerger, 79 N. Y. S. 2d 634; Matter of Warrington [State of New York], Court of Claims, Motion No. 1796, July 11, 1950, Sylvester, J., affd. 277 App. Div. 1076; Matter of Bryant, Court of Claims, July 11, 1950, Sylvester, J., Motion No. 1795) unless the examination to be had in “ Edward P. McGrath, as Committee of the Person and Estate of Mary McGrath, an Incompetent person v. State ” is had first with waiver of privileged communications by the committee, in which event claimant may on the examination herein provided for avail himself of said waiver and to the extent thereof may examine with reference to privileged communications. (People v. Bloom, 193 N. Y. 1; Morris v. New York, Ontario & Western Ry. Co., 148 N. Y. 88; McKinney v. Grand St., Prospect Park & Flatbush R. R. Co., 104 N. Y. 352.)
Settle order on notice.