NY Appellate Division rules a “termination letter” could be of probative value on issue of negligence and is discoverable even in absence of negligent hiring or retention claim.

Plaintiffs in New York generally cannot maintain claims of negligent hiring, retention, training, supervision, etc. in a case where the corporate or municipal entity would be responsible for the actions of their driver/employee under a theory of respondeat superior. That standard, plus this plaintiff’s failure to even assert such a claim in this case, informed the trial court’s decision to preclude discovery of the driver’s personnel file. However, despite this general rule, the trial court and the Third Department ruled that a termination letter issued to the driver “may contain both information concerning the outcome of the City’s investigation and the basis for [the driver’s] termination,” and “[a]ny evidence which sheds light on how the accident occurred is patently relevant to a determination of whether there was any negligence in this accident.” This language from the Appellate Division is interesting in that it does not appear to have specifically reviewed the letter in question, but it generally refers to what the letter could state. This is, perhaps, informative that seeking in camera review, if in fact the letter is purely a post-remedial measure and not relevant to the question of negligence for the accident, could help shield such a document from disclosure.

^{Case Law Alerts, 3rd Quarter, July 2022 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2022 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}