Lyle v. Albert Mendel & Sons, Inc.

— In an action to recover damages for injury to a cattle herd, (1) the Department of Agriculture and Markets of the State of New York appeals, as limited by its notice of appeal and brief, from (a) so much of an order of the Supreme Court, Dutchess County (Martin, J.), entered July 27, 1981, as directed it to furnish certain material to defendants Albert Mendel & Sons, Inc., Albert Mendel, Ernest Mendel, Helen Mendel, Harry Tischler, and Betty Jean Hahn, and (b) so much of an order of the same court, dated January 28, 1982, as directed it to furnish such material to defendants Charles and Patricia Frumerie, and (2) defendants Albert Mendel & Sons, Inc., Albert Mendel, Ernest Mendel, Helen Mendel, Harry Tischler and Betty Jean Hahn cross-appeal from so much of the order entered July 27,1981, as denied that branch of their motion which sought disclosure of internal memoranda and investigative reports. Order, entered July 27, 1981, modified by deleting the last sentence thereof and by adding thereto a provision granting the motion for discovery in its entirety. As so modified, order affirmed insofar as appealed from, without costs or disbursements. Order, dated January 28,1982, affirmed, without costs or disbursements. Under the circumstances of this case, the Department of Agriculture and Markets, as a nonparty witness, failed to show the existence of any privilege or immunity which would warrant the denial of full discovery. Indeed the department apparently provided much of the material in question to the plaintiff in a pending case in Massachusetts in which the issues and claims are identical to those at bar. Since the moving defendants have demonstrated that the requested documents are necessary and material to their defense at trial, full discovery should be had (see Kaplan v Kaplan, 31 [716] NY2d 63; Carricato v Dellwood Distrs., 45 AD2d 970). Mollen, P. J., Lazer, Weinstein and Rubin, JJ., concur.