Opinion
June 4, 1984
In an action to recover damages for fraud, defendant appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Becker, J.), dated March 2, 1983, as, in denying plaintiffs' motion for a protective order limiting disclosure pursuant to CPLR 3103, did so upon condition that defendant provide plaintiffs with copies of the reports of inspections to be made of plaintiffs' homes, insofar as they relate to the physical findings of such inspections, and with copies of all the photographs to be taken. ¶ Order reversed insofar as appealed from, with costs, and the conditions set forth above are deleted. ¶ There was an inadequate showing that the material sought "can no longer be duplicated because of a change in conditions and that withholding it will result in injustice or undue hardship" (CPLR 3101, subd [d]). Plaintiffs may seek discovery of the reports and photographs in issue, if they be so advised, following completion of defendant's inspections, upon a more specific showing that destructive or altering testing took place. Lazer, J.P., Thompson, Weinstein and Eiber, JJ., concur.