Opinion
March 30, 1967
Appeal from the Erie Special Term.
Present — Williams, P.J., Bastow, Goldman, Henry and Marsh, JJ.
Order unanimously modified in accordance with memorandum and as modified affirmed, without costs. Memorandum: Suit had not been commenced on any of the matters now in litigation at the time the statements sought were made but creditors of defendant Schwab were threatening suit if they were not paid. It appears that counsel was retained by Glens Falls Insurance Co. in contemplation of litigation and that the written statements of Baker and Wykoff requested after consultation with and advice from counsel were obtained in preparation for litigation. The surrounding circumstances negate the idea that this was a routine investigation in order to aid the company in making an internal decision upon a policy claim. ( Welch v. Globe Ind. Co., 25 A.D.2d 70.) Since the record clearly demonstrates that the statements of Baker and Wykoff, made on February 17, 1965, were obtained after consultation with counsel and upon his advice they should be protected from discovery as materials prepared for litigation. ( Brunswick Corp. v. AEtna Cas. Sur. Co., 27 A.D.2d 182. ) There will be no undue hardship upon plaintiff if the statements are not produced for he has already had an oral examination of defendant Wykoff and does not allege he could not obtain one of defendant Baker. Plaintiff thus would not be entitled to relief under CPLR 3101 (subd. [d], pars. 1, 2). (3 Weinstein-Korn-Miller, par. 3101.55.)