Braun v. Great Atlantic & Pacific Tea Co.

67 A.D.2d 898, 413 N.Y.S.2d 181, 1979 N.Y. App. Div. LEXIS 10664

Opinions

— In an action to recover damages for personal injuries, defendant appeals (1) from an order of the Supreme Court, Queens County, dated June 17, 1977, which granted plaintiffs motion for discovery of an accident report and (2) as limited by its brief, from so much of a further order of the same court, dated November 10, 1977, as, upon reargument, adhered to the original determination. Appeal from the order dated June 17, 1977 dismissed as academic. That order was superseded by the order made upon reargument. Order dated November 10, 1977 reversed insofar as appealed from, and, upon reargument, motion for discovery of the accident report denied. Defendant is awarded one bill of $50 costs and disbursements to cover both appeals. On the present record it appears that the accident report sought was prepared by defendant’s employee solely in preparation for litigation. The report form was drafted by the attorneys representing defendant exclusively on accident cases and related occurrences, and the completed report form was immediately forwarded to them. Moreover, these reports were never used to improve efficiency or for any other business purpose, according to the affidavit of defendant’s region comptroller. Accordingly, unlike the document sought in Green v Carey Transp. (38 AD2d 711), which apparently was prepared for the benefit of the employer in his business, this accident report is exempt from disclosure under CPLR 3101 (subd [d], par 2) (see Reese v Long Is. R. R. Co., 24 AD2d 581; Kandel v Tocher, 22 AD2d 513). Gulotta, J. P., Cohalan and Margett, JJ., concur.