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SCHMIDT v. STATE OF NY

279 A.D.2d 62 (2000)

722 N.Y.S.2d 623

SCOTT M. SCHMIDT et al., Respondents, v. STATE OF NEW YORK, Appellant. (Claim No. 98418.)

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

December 27, 2000.

Attorney(s) appearing for the Case

Eliot Spitzer, Attorney General, Albany (Michael S. Buskus of counsel), for appellant.

Ellis & Kustell, Buffalo (Carl B. Kustell of counsel), for respondents.

GREEN, J.P., and KEHOE, J., concur with SCUDDER, J.; WISNER and HURLBUTT, JJ., dissent and vote to reverse in a separate opinion by WISNER, J.

OPINION OF THE COURT

SCUDDER, J.

Defendant contends on appeal that the Court of Claims erred in refusing to preclude claimants' use of statements obtained from employees of the New York State Department of Transportation (DOT) at the behest of claimants' counsel, allegedly in violation of Code of Professional Responsibility DR 7-104 (a) (1) (22 NYCRR 1200.35 [a] [1]). Defendant also contends that the court erred in refusing to preclude claimants from deposing...

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