
    Aaron Finegold et al., Appellants, v. Alva Lewis, Respondent.
    Second Department,
    February 1, 1965.
    
      
      Arthur Bernknopf for appellants.
    
      Flood & Cartiglia (William C. Mattison and Michael Caputo of counsel), for respondent.
   Ughetta, J.

It is provided in the new disclosure statute (CPLR 3101) that “unless the court finds that the material [sought] can no longer be duplicated because of a change in conditions and that withholding it will result in injustice or undue hardship * * * any writing or anything created by or for a party or his agent in preparation for litigation ’ ’ shall not be obtainable by an adverse party.

The principal question here presented is whether a defendant’s written statement to his insurer is “in preparation for litigation ” (CPLR 3101, subd. [d], par. 2). The statement sought was made by the defendant prior to the commencement of this action on February 5, 1964. Plaintiffs seek the statement in an effort to find therein admissions by the defendant or inconsistencies with his subsequent testimony in his pretrial examination.

The statement is not available for discovery under the statute (CPLR 3101). The statement was given by an insured to his insurer, who is a defendant in a very real sense, as part of the latter’s preparation for trial, should a trial ensue. The relative dates of the delivery of the statement and of the commencement of the action are immaterial.

We are not here concerned with discoverability of a report made in the regular course of business by an employee to his employer (cf. Bloom v. New York City Tr. Auth., 20 A D 2d 687), nor with the admissibility in evidence of such a report (cf. Lonigro v. Baltimore & Ohio R. R. Co., 22 A D 2d 918).

By the same token, Special Term’s denial of discovery of the report of the damage to plaintiffs’ automobile, furnished to the insurer by the latter’s expert, must be sustained (CPLR 3101, subd. [d], par. 1).

The order should be affirmed, without costs.

Beldock, P. J., Christ, Brennan and Hopkins, JJ., concur.

Order affirmed, without costs.  