SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
June 24, 1968
RHEA H. CLARKE ET AL., APPELLANTS,
FIRST PRESBYTERIAN CHURCH OF EAST AURORA, DEFENDANT-RESPONDENT AND THIRD-PARTY PLAINTIFF. EMULSO CORPORATION, THIRD-PARTY DEFENDANT
Appeal from order of Erie Special Term, denying protective order and directing discovery and inspection.
Bastow, P. J., Goldman, Del Vecchio, Witmer and Henry, JJ. All concur, except Goldman, J., who dissents and votes to affirm.
Memorandum: The report sought to be discovered by defendant was prepared by an expert employed by plaintiffs and was predicated upon the condition of the assembly room floor as it existed nine months after the accident, when the coating of the floor had been changed from that which existed at the time of plaintiff's fall. It was unquestionably material prepared for litigation which was exempt from disclosure, unless defendant established that it could no longer be duplicated because of a change in conditions and that withholding it would result in injustice or undue hardship. (CPLR 3101, subd. [d].) This it has failed to do. To the extent that the test conducted by plaintiffs' expert was based on conditions different from those which existed at the time of the accident, it is within defendant's power even today to duplicate that situation. Furthermore, any hardship which may result is the defendant's own doing; it knew that plaintiffs were making tests shortly after it was done and had it within its power at any time to make such tests as it thought appropriate. The assembly room floor was at all times within the exclusive control of defendant.
Order reversed, with costs, and motion granted.
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