Saccente v. Toterhi

Concur — Capozzoli, J. P., Nunez and Tilzer, JJ.; Markewich and McNally, JJ., dissent in the following memorandum by McNally, J.: I would deny the discovery. The photographs of the plaintiff in question were taken by a representative of the defendants’ insurance carrier a short time after the accident. Plaintiffs in tort actions are not entitled to obtain the product of investigations on accidents by automobile liability insurers in preparation for the handling of 1 claims against their insureds. No special circumstances are alleged. There is no showing of prejudice. Plaintiff could have obtained photographs himself if he so desired and may testify as to his appearance and condition at any time after the occurrence as well as at the time the photographs were taken. (Kandel v. Tocher, 22 A D 2d 513.)