Mosca v. Pensky 42 A.D.2d 708

In a negligence action to recover damages for personal injuries, etc., defendant Herbert Pensky appeals from an order of the Supreme Court, Westchester County, dated February 1, 1973, which (1) denied his motion for a protective order against discovery and inspection by plaintiffs of his automobile liability insurance policy and (2) granted plaintiffs’ cross motion for discovery and inspection of the policy. Order reversed, without costs, motion of defendant Herbert Pensky granted, and plaintiffs’ cross motion denied. This case is not distinguishable from Fierman v. Cirillo (40 A D 2d 976), in which we stated that it was an improvident exercise of discretion to grant discovery and inspection of a defendant’s liability insurance policy. We now hold, however, that such disclosure in this case should be denied as a matter of law. In our opinion, permitting discovery and inspection of the policy would contravene the provisions of CPLR 3101, since the policy is not “ evidence material and necessary in the prosecution or defense of ” the action. The disclosure desired may only be effected by the Legislature or by rule of the Administrative Board. Gulotta, Christ and Brennan, JJ., concur; Hopkins, Acting P. J., and Latham, J., dissent and vote to affirm on the opinion of the Justice at Special Term in which the issue was properly decided as a question of discretion (Mosca v. Pensky, 73 Misc 2d 144).