
    Frank Lott et al., Claimants, v. State of New York, Defendant.
    (Claim No. 35463.)
    Court of Claims,
    November 28, 1958.
    
      James J. Jackman for claimants.
    
      Louis J. Lefkowits, Attorney-General (Robert Schwarts of counsel), for defendant.
   Sidney Squire, J.

Claimants move for an examination before trial of the State of New York and for “an inspection and permission to take copies ” of certain books and records.

The State opposes those portions of the motion relating to matters prior to the death of claimant’s mother on January 18, 1958, and any discovery and inspection pursuant to section 324 of the Civil Practice Act. Such bases of opposition are valid. Granting of the motion must be limited as contended by the State.

The claim herein alleges that claimants’ mother died at the Brooklyn State Hospital (under the jurisdiction and control of the defendant) on January 18, 1958, while a patient at said hospital. It is pleaded (par. 2) that “ This claim is for the negligence of the State in the care, treatment and handling of the dead body of Rose Lott, the decedent ”. There is no allegation concerning any actionable cause prior to the death of the decedent.

The gravamen of their cause of action is that employees of the State in disregard of tenets of decedent’s religion which forbids embalming, did embalm the decedent’s body and release the same to an undertaking establishment for burial in accordance with another religions faith, although claimants had arranged for the removal and burial in accordance with the laws and customs of the families’ religion (decedent’s and claimants’).

There is no allegation that the State did anything improper before the death. Accordingly, an examination before trial as to any matters before said death would be unwarranted as a matter of law.

Claimants’ notice of motion requests an inspection and permission to take copies ” of certain books and records. A discovery and inspection pursuant to section 324 of the Civil Practice Act cannot be granted in this court, according to oft-repeated determinations of the appellate courts.

However, claimant is entitled to utilize the helpful provisions of section 296 of the Civil Practice Act. During the course of the examination before trial the material records to be produced thereat may be inspected before they are offered by the examining party, and copies made or obtained after same have been marked. Claimants cannot have a 11 discovery ’ ’ thereof.

Short form order signed directing that the defendant’s director of the Brooklyn State Hospital designate and produce its employees having knowledge of the facts, for examination before trial on the day, time and place stated therein ‘ with respect to all of the relevant facts and circumstances beginning with the death of Rose Lott at the said hospital on January 18, 1958 until her burial ’ ’ and further directing that certain records, reports, etc., be produced thereat for use in accordance with section 296 of the Civil Practice Act.  