Opinion
March 11, 1971
Order, Supreme Court, New York County, entered on November 16, 1970, reversed, on the law, motion for a protective order denied and cross motion for discovery and inspection granted. Defendant-appellant shall recover of plaintiff-respondent $30 costs and disbursements of this appeal. Defendant sought discovery of plaintiff's experts' reports on the condition of a payloader and a propane gas cylinder. Both objects were involved in an explosion which is the basis for the action. Defendant has examined the objects themselves but claims they are not in the same condition as they were immediately following the explosion and that there is no way of discovering what they were like when they were examined by plaintiff's experts. While questions were raised as to the timeliness of the respective applications, we do not deem these worthy of discussion and address ourselves to the merits. We find that defendant made a sufficient prima facie showing of a change of condition in the objects and the information as to their condition was not otherwise obtainable. Under these conditions the reports, even though prepared for the purpose of litigation, are discoverable (CPLR 3101, subd. [d], par. 1; Bush v. E.H. Cottrell, Inc., 33 A.D.2d 983; Hayward v. Willard Mountain, 48 Misc.2d 1032).
Concur — Markewich, J.P., Nunez, Kupferman, Steuer and Tilzer, JJ.