COMMERCE INDUS v. S.H. LAUFER VISION WORLD

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 A.D.2d 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 A.D.2d 654; Ortung Piano Organ Co. v Aetna Cas. Sur. Co., 75 A.D.2d 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.