Fraumeni v. Phelps Dodge Refining Corp.

Order of the Supreme Court, Kings County, dated July 29, 1966, modified (a) by striking out of its first ordering paragraph the words “and post accident reports” and subsequent reference thereto; and (b) by substituting the word “ photographs ” for “ documents ” in the second ordering paragraph. As so modified, order affirmed insofar as appealed from, with $10 costs and disbursements to appellant. The time for discovery and inspection of the subject photographs, as provided in the order, is extended until 20 days after entry of the order hereon. There was no refutation of the pretrial testimony of defendant’s representative Hayes that his report was prepared for use in litigation; nor was it shown that the material in the report cannot be duplicated and that withholding thereof will result in hardship. Ughetta, Christ and Brennan, JJ., concur; Beldock, P. J., and Hopkins, J., dissent and vote to affirm the order insofar as appealed from, on the ground that the post-accident report in question was primarily prepared in appellant’s ordinary course of business, despite the fact that it may have some potential in litigation. The report was apparently made for the main purpose of aiding defendant’s “safety program” and incidentally for the litigation. As such, it should be subject to full disclosure (cf. Welch v. Globe Ind. Co., 25 A D 2d 70).