Mosier v. Van Der Horst Research Corp. , 270 N.Y.S.2d 3 ( 1966 )

Appeal from an order of the Supreme Court at Special Term, entered March 10, 1965, in Erie County, which denied a motion by defendants for an order granting a protective order.

Order modified in accordance with memorandum and, as modified, affirmed, without costs of this appeal to either party. Memorandum: Defendants moved for a protective order after plaintiff as part of a pretrial examination demanded that defendants produce all prelitigation reports of the accident made by the individual defendant to his employer, the codefendant, or to the insurance carrier of either or both defendants. Special Term erred in denying the application as to reports made to any insurance carrier (Kandel v. Tocher, 22 A D 2d 513). Upon the record before ns, however, Special Term properly denied the application as to reports made by the said employee to his employer. In moving for such relief defendants submitted an affidavit containing conclusory allegations that the reports sought to be discovered were not material and necessary, were privileged and contained material prepared for litigation. In the absence of facts to support these conclusions defendants were not entitled to affirmative relief. (Cf. Metropolitan Life Ins. Co. v. Lane Klinow & Co., 23 A D 2d 646.)