Calo v. Ahearn

— Order of the Supreme Court, Bronx County (Irma V. Santaella, J.), entered on June 17, 1986, which denied plaintiff Ahearn’s motion for a protective order vacating defendant General Motors Corporation’s notice of deposition served upon nonparty American Standards Testing Bureau, Inc., is unanimously reversed, on the law and facts and in the exercise of discretion, and the motion granted, without costs or disbursements.

In this personal injury action, the alleged malfunction of a steering mechanism in an automobile manufactured by defendant General Motors Corporation is in issue. The automobile was inspected by plaintiffs expert, American Standards Testing Bureau, and was thereafter destroyed. Plaintiff Ahearn, however, voluntarily furnished all other parties with copies of the inspection report from American Standards. Defendant General Motors, nevertheless, served a notice of deposition upon American Standards, and the IAS court denied plaintiffs motion to vacate that notice.

The denial of plaintiffs motion for a protective order was an abuse of discretion under the circumstances herein. Although CPLR 3101 (a) permits disclosure of all evidence that is "material and necessary” in the prosecution and defense of an action, CPLR 3101 (d)^* forbids disclosure of an opinion of an expert prepared for litigation "unless the court finds that the material can no longer be duplicated because of a change in conditions and that withholding it will result in injustice or undue hardship”.

In view of the fact that defendant has already been furnished with a copy of the expert’s report, there has not been a sufficient showing by defendant that it will suffer "injustice or undue hardship” in foregoing additional discovery of the nonparty expert, American Standards. Concur — Sullivan, J. P., Ross, Asch and Wallach, JJ.

* Although CPLR 3101 (d) was substantially amended in 1985 (L 1985, ch 294, § 4), such amendment does not apply to actions commenced before July 1,1985 (L 1985, ch 294, § 25).