Opinion
October 14, 1965
Order entered April 1, 1965 which directs the examination of the witness, Edward L. Riveles, unanimously affirmed, without costs or disbursements to either party, and order entered April 1, 1965, which directs the examination before trial of an officer, etc. of defendant having knowledge of the facts of the accident and grants other relief, unanimously modified, on the law and the facts, and in the exercise of discretion, to the extent of eliminating the provision for discovery and inspection of the report made by the defendant's manager pertaining to the alleged accident, but requiring the production of said report to be used in aid of the examinations before trial, and otherwise affirmed, without costs or disbursements to either party. Defendant was entitled to a protective order regarding the production for discovery and inspection of the report of the manager of the store at the time of the alleged accident. The report was prepared on a form of the defendant's insurance company and transmitted by the branch manager to the home office of defendant and thence to the insurance company. Under the decisions in Kandel v. Tocher ( 22 A.D.2d 513) and Finegold v. Lewis ( 22 A.D.2d 447) such a report must be considered as a writing created for or by a party or his agent in preparation for litigation pursuant to CPLR 3101 (subd. [d], par. 2). However, in the circumstances of this case, such report should be produced upon the examinations before trial to be used in conjunction with the examination pursuant to CPLR 3111. Such use of the report is particularly appropriate here since it is averred that the report was prepared by Riveles, whose examination we are affirming herewith. Settle order on notice.
Concur — Breitel, J.P., Rabin, Valente, Stevens and Eager, JJ.