DiMichel v. South Buffalo Railway Co.

— Order modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: The court ordered defendant to provide to plaintiff for inspection and copying all videotapes and/ or surveillance films of plaintiff. We agree that such materials generally are discoverable (see, Marte v Hickok Mfg. Co., 154 AD2d 173). That order is modified, however, to the extent that defendant must provide to plaintiff those surveillance materials it intends to use at trial, and is precluded from using any 915 surveillance material that it does not supply to plaintiff within 60 days of the date of this order (see, Marte v Hickok Mfg. Co., supra, at 178; see also, Snead v American ExportIsbrandtsen Lines, 59 FRD 148). Although the surveillance material does not constitute a statement discoverable pursuant to CPLR 3101 (e) (cf., Saccente v Toterhi, 35 AD2d 692), it does constitute material prepared for litigation, discoverable upon a showing that the party seeking discovery has a substantial need of the materials in preparation of the case and is unable without undue hardship to obtain their substantial equivalent by other means (CPLR 3101 [d] [2]). It cannot be gainsaid that plaintiff has a substantial need for discovery of the surveillance materials based on the fact that "visual reproductions may not always provide a correct picture of what they purport to depict since they are subject to manipulation” (Marte v Hickok Mfg. Co., supra, at 176; see, Snead v American Export-Isbrandtsen Lines, supra). For that same reason, it is impossible for plaintiff to obtain the substantial equivalent of the surveillance materials by other means. Moreover, the general rule is that, "[discovery should be permitted of any matter ' "which is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable” ’ (Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406-407, quoting 3A Weinstein-Korn-Miller, NY Civ Prac, par 3101:07, p 31-13)” (Matter of Xerox Corp. v Sanger, 104 AD2d 720, 721). All concur, except Balio and Lawton, JJ., who dissent and vote to reverse, in the following Memorandum.