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Commerce and Industry Insurance Company, as Subrogee of Kleinsleep Products, Inc. v. S.H. Laufer Vision World, Inc., Defendants Commerce and Industry Insurance Company, as Subrogee of Kleinsleep Products, Inc. v. Arthur Deutsch, P. C., Appellants Kim J. Ronaldson as Administratrix of the Estate of Alfred Ronaldson v. Automotive Realty Corporation, and City of New York, (And Two Third-Party Actions.)
314 The IAS Court properly rejected the conclusory assertion of defendant’s insurer that the expert report prepared by Thomas J. Russo Consultants, Ltd. was prepared exclusively for litigation, and correctly held it to be a "mixed file” subject to disclosure (see, Mavrikis v Brooklyn Union Gas Co., 196 AD2d 689), upon a record indicating that it was used by defendant’s insurer to evaluate defendant’s property loss claim as well as to aid in the anticipated wrongful death litigation.
However, the court should have taken steps to safeguard any opinions and conclusions contained therein (see, Perfido v Messina, 125 AD2d 654; Ortung Piano & Organ Co. v Aetna Cas. & Sur. Co., 75 AD2d 845). Since the report was not prepared solely for litigation, CPLR 3101 (d) (2) does not apply and plaintiffs were under no obligation to justify disclosure of the report with a showing of undue hardship. Accordingly, we modify as indicated. Concur — Sullivan, J. P., Wallach, Ross and Williams, JJ.