Opinion
November 25, 1985
Appeal from the Supreme Court, Westchester County (Ruskin, J.).
Order reversed, with costs, and motion denied.
As noted by Special Term, the failure to make a timely motion for a protective order forecloses inquiry into the propriety of a notice for discovery and inspection and the information sought to be discovered thereunder except as to requests which are palpably improper or as to privileged matter (CPLR 3101, 3122; Cipriano v Righter, 100 A.D.2d 923). This case falls within the exception to that rule and, accordingly, we reverse.
The workers' compensation carrier's claim file for the plaintiff in the underlying action is, in fact, the file of the liability insurer for purposes of defendant and third-party plaintiff's claim for contribution and/or indemnification against the third-party defendant. It is well established that the file of a liability insurer in an accident case, as well as reports prepared by an insured for his liability insurer, fall within the scope of the conditional exemption from disclosure afforded material prepared for litigation (CPLR 3101 [d]; Vernet v Gilbert, 90 A.D.2d 846; Kandel v Tocher, 22 A.D.2d 513). Defendant and third-party plaintiff has not shown that the material therein cannot be duplicated and that withholding it may result in injustice or undue hardship (CPLR 3101 [d]; Volpicelli v Westchester County, 102 A.D.2d 853). Moreover, the request for the entire file, without specifying the nature of the particular documents sought, was overly broad (see, Park Knoll Assoc. v Schmidt, 99 A.D.2d 772). Finally, since the claim file appears to be in the hands of the carrier, a nonparty, the notice for discovery and inspection should have been served upon it in the first instance. Mollen, P.J., Brown, Niehoff and Eiber, JJ., concur.