Opinion
March 6, 1975
Order, Supreme Court, New York County, entered on November 8, 1974, granting reargument and, upon reargument, adhering to the court's prior determination entered on July 12, 1974, in which it granted plaintiff's motion for discovery, but, at the same time, granted defendant's cross motion for a protective order to the extent of striking items Nos. 3 and 4 from plaintiff's notice of discovery, unanimously modified, on the law, the facts and in the exercise of discretion, to the extent of reinstating Item No. 3, except insofar as it seeks "witnesses' statements" and directing defendant to furnish plaintiff with names and addresses of witnesses and, as so modified, the order is affirmed, without costs. Item No. 3, as modified, is not privileged and that which is sought therein does not constitute an attorney's work product. (CPLR 3101, subds. [b], [c].) While it may be deemed material obtained in preparation of litigation, as envisioned by CPLR 3101 (subd. [d]), the items sought therein are obtainable since they can no longer be duplicated and withholding same would result in undue hardship to plaintiff (CPLR 3101, subd. [d]). Similarly, plaintiff is entitled to know the names and addresses of the witnesses whose statements were sought in Items Nos. 3 and 4 of plaintiff's notice, even if the statements themselves are not obtainable. ( Zellman v. Metropolitan Transp. Auth., 40 A.D.2d 248.)
Concur — Stevens, J.P., Lupiano, Capozzoli and Lane, JJ.