J. Marcus & Sons, Inc. v. Federal Insurance

Taylor, J. Defendant appeals from an order of the Supreme Court granting plaintiff’s motion for a protective order pursuant to CPLR 3122 striking defendant’s notice to permit entry upon plaintiff’s property for the purpose of inspecting, examining, photographing and recording by motion pictures or otherwise the buildings and the appurtenances thereon involved in an action to recover damages for losses of property allegedly occasioned as the result of named perils set forth in a policy of fire insurance issued by defendant. Special Term rested its decision on .the theory that once having had an inspection defendant was not entitled to another absent a showing of special circumstances. In this Special Term erred. CPLR 3120 provides for the discovery and production of documents and things for inspection, testing, copying or photographing “After commencement of an action”. The voluntary disclosure had was, of course, prior to the commencement of the action and hence was not exhaustive of the right which the statute grants after its commencement. (Cronin v. Anderson, 226 App. Div. 691; Anthony v. Bradshaw, 282 App. Div. 851; Swiatlowski v. Kasprzyk, 3 A D 2d 261.) In any event, there was no satisfactory showing by the movant that a second entry upon plaintiff’s property would cause “ unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.” (CPLR 3103, subd. [a]; Buehler v. Bush, 200 App. Div. 206; Citizens Trust Co. v. Prescott & Son, 221 App. Div. 420.) Order reversed, on the law and the facts, with costs, and motion denied. Gibson, P. J., Herlihy, Reynolds and Hamm, JJ., concur.