Braun v. Great Atlantic & Pacific Tea Co. , 413 N.Y.S.2d 181 ( 1979 )

Shapiro, J.,

concurs as to the dismissal of the appeal from the order dated June 17, 1977, but otherwise dissents and votes to affirm the order dated November 10, 1977 insofar as it has been appealed from, with the following memorandum: The use of the form in question was clearly an artifice designed by counsel for the purpose of precluding injured plaintiffs from receiving the benefits of disclosure by the illusory contention that the reports were nondiscoverable material prepared for the purpose of litigation (CPLR 3101, subd [d], par 2). The pretrial testimony of defendant’s employee, that it was the practice when an accident occurred to have a report completed and "sent in to the main office”, warranted Special Term’s holding that the report was not prepared exclusively for purposes of litigation. The form, which was prepared by counsel and states on its face that an employee "when preparing [the] report [should] make two additional copies and give to your supervisor”, also bears that out (see, also, Green v Carey Transp., 38 AD2d 711).