Opinion
March 31, 1966
Order entered October 21, 1965, denying defendant's motion made pursuant to CPLR 3101 (subd. [d]) and 3103, for a protective order against the examination before trial by plaintiff of defendant's independent auditor, employed by defendant to audit plaintiff's books under the policy of robbery and burglary insurance upon which plaintiff has brought suit herein, reversed on the law, on the facts, and in the exercise of discretion, with $30 costs and disbursements to the defendant-appellant, and the motion granted. After the alleged burglary and before suit was brought, defendant employed the auditor to examine plaintiff's books with respect to the loss, in anticipation of a claim therefor. In its answer to the complaint, defendant alleges as an affirmative defense that plaintiff failed to keep books and records of the insured property (jewelry) in such a manner that the amount of the loss could be accurately determined as required by the terms of the policy, and that no burglary was in fact committed. Plaintiff's motion seeks to ascertain the basis of defendant's defense through the examination of its auditor. The report of its auditor is "material prepared for litigation" within the meaning of CPLR 3101, subd. [d]), and may not be made available to the plaintiff (see Kandel v. Tocher, 22 A.D.2d 513; 3 Weinstein-Korn-Miller, New York Civil Practice, pars. 3101.50b, 3101.52) in the absence of a showing that the material can no longer be duplicated and that to withhold the examination from plaintiff will result in hardship and injustice. Patently, plaintiff can make no such showing here, because he still has in his possession the records from which the auditor made the report to defendant. The work of the auditor is to be distinguished from employee reports in the regular course of business (see Bloom v. New York City Tr. Auth., 20 A.D.2d 687; De Vito v. New York Cent. R.R. Co., 32 Misc.2d 494, affd. 3 A.D.2d 692) and investigators' reports containing statements by plaintiff (see Welch v. Globe Ind. Co., 25 A.D.2d 70).
Concur — Breitel, J.P., Rabin, McNally, Steuer and Witmer, JJ.