Mers v. Intermedics, Inc.

— Order, Supreme Court, New York County (Seymour Schwartz, J.), entered October 24, 1983, which, inter alia, granted plaintiff’s cross motion to direct defendant to permit discovery of its testing reports and data concerning pacemaker unit No. 18715 (model 253-07), is modified, on the law and the facts, to the extent of denying that part of the cross motion that sought discovery of the defendant’s testing reports and data relating to this pacemaker, and otherwise affirmed, without costs. Plaintiff commenced the instant action to recover damages for personal injuries caused him by an allegedly malfunctioning pacemaker unit manufactured by defendant. Issue has been joined. At the request of the defendant, the plaintiff provided it with the subject pacemaker. After the receipt of the pacemaker, defendant performed various tests in respect to it. In response to defendant’s motion for, inter alia, a further bill of particulars, plaintiff made a cross motion for, inter alia, discovery of defendant’s testing reports and data pertaining to this pacemaker. Plaintiff contended, in support of its cross motion, that it had a right to this material, upon the basis that defendant’s testing was done in the ordinary course of business, pursuant to the pacemaker’s warranty. Defendant disagreed and argued that the dominant purpose in conducting these tests was to prepare for litigation. Special Term granted the discovery requested by plaintiff. We hold that Special Term erred. The record herein unequivocally indicates that the defendant prepared the documents for litigation and, therefore, they are entitled to be protected from disclosure “unless * * * the material can no longer be duplicated because of a change in conditions and that withholding it will result in injustice or undue hardship” (CPLR 3101, subd [d]). Our determination to deny plaintiff’s cross motion does not “result in injustice or undue hardship” since the plaintiff does not controvert the defendant’s 552 assertion that the condition of the pacemaker has not changed and that it is available for inspection and nondestructive testing by the plaintiff’s expert. Concur — Murphy, P. J., Sullivan, Ross and Kassal, JJ.