Opinion
September 23, 1976
Order entered October 11, 1974, in the Supreme Court, New York County, which granted plaintiff's motion for an examination before trial of defendant, and which also granted defendant's cross motion for an order directing the production by plaintiff of certain documents, designated in defendant's notice for production and discovery dated February 1, 1974, unanimously affirmed, with $40 costs and disbursements to defendant and defendant's cross appeal is dismissed, without costs and without disbursements, as moot. Plaintiff's contention that the documents in question are protected from disclosure must be rejected. Plaintiff has not shown that these are privileged documents especially prepared for litigation or that they are protected work products. (See CPLR 3101.) Rather they are reports and papers resulting from an investigation under a casualty policy following the burglary of plaintiff's premises and are discoverable. (Millen Ind. v American Mut. Liab. Ins. Co., 37 A.D.2d 817; Welch v Globe Ind. Co., 25 A.D.2d 70; see Kandel v Tocher, 22 A.D.2d 513.) Moreover, plaintiff had agreed earlier to produce some, if not all of the documents in question, and had failed to move pursuant to CPLR 3122 for a protective order following receipt of the notice to produce. Finally, we do not conclude from this record that there is a total lack of special circumstances which could warrant disclosure. Settle order fixing date for discovery.
Concur — Stevens, P.J., Markewich, Birns and Lane, JJ.