Opinion
April 13, 1981
In an action to recover damages for personal injuries predicated upon theories of negligence, products liability and breach of warranties, second third-party defendant Press Shear Machinery Corporation appeals from an order of the Supreme Court, Queens County, dated November 14, 1980, which granted the motion of second third-party plaintiff Gulf Western Manufacturing Company, sued herein as E.W. Bliss Company, Inc., for a protective order vacating Items Nos. 7 and 8 of the notice of discovery and inspection dated September 26, 1980, propounded by second third-party defendant Press Shear Machinery Corp. Order reversed, with $50 costs and disbursements, motion denied and protective order vacated. Respondent, within 20 days after service upon it of a copy of the order to be made hereon, together with notice of entry, is directed to produce the items demanded in Items Nos. 7 and 8 of the notice of discovery and inspection. In view of the facts and allegations of the parties, we find that "adequate special circumstances" exist requiring disclosure of photographs taken and experts' reports prepared at the request of the respondent with regard to the condition of the power press machine after the accident (see CPLR 3101, subd [a], par [4]). Respondent's objection that the reports and the photographs are privileged as material prepared for litigation is without merit inasmuch as the materials can no longer be duplicated because of the lapse of time and withholding them would result in injustice and hardship. Therefore, these materials are discoverable (see CPLR 3101, subd [d]; Brandes v Pettibone, Inc., 62 A.D.2d 1133; Wasmuth v Hinds-Toomey Auto Corp., 39 A.D.2d 723). Hopkins, J.P., Titone, Lazer and Cohalan, JJ., concur.