Opinion
March 1, 1971
Order, Supreme Court, New York County entered on October 14, 1970, and two orders of said court, entered on November 10, 1970, unanimously modified, on the law and the facts and in the exercise of discretion, to eliminate therefrom any direction to the defendant-appellant to produce specific documents upon examination before trial. As so modified, the orders are in all other respects affirmed, without costs and without disbursements. In this death action, based upon alleged breach of warranty and negligent design, manufacture, assembly and repair, the plaintiff moved for a further examination of defendant-appellant before trial. In connection therewith the notice of motion sought, pursuant to CPLR 3120, discovery and inspection of general records and reports of the defendant-appellant with respect to the automobile model involved in the accident. Only those documents necessary to be used in aid of conducting a deposition are required to be produced on an examination before trial (CPLR 3111; Arett Sales Corp. v. Island Garden Center of Queens, 25 A.D.2d 546). Nor can such rule be subverted by seeking discovery and inspection pursuant to CPLR 3120 simultaneously with an examination before trial. Orderly disclosure procedures require that a party, by use of examination, first ascertain identifiable documents before seeking discovery and inspection ( Rios v. Donovan, 21 A.D.2d 409). Accordingly, the production of records and documents on defendant-appellant's examination is limited to those required to be produced pursuant to CPLR 3111.
Concur — Stevens, P.J., McGivern, Markewich, Nunez and Kupferman, JJ.