Oppedisano v. New York Mutual Underwriters , 111 A.D.2d 452 ( 1985 )

Weiss, J.

Appeal from an order of the Supreme Court at Special Term (Cholakis, J.), entered May 11, 1984 in Albany County, which, inter alia, granted defendants’ motion for a protective order.

This is an action to recover upon a contract of fire insurance issued by defendants upon plaintiff’s two-family dwelling house which was damaged by fire. Defendants sought a protective order as to 18 of 52 interrogatories served by plaintiff on the grounds that those materials were prepared in contemplation of trial and thus protected. Plaintiff cross-moved for an order requiring defendants to answer the interrogatories. In granting defendants’ motion, Special Term ordered that questions numbered 5 through 7, 9,10 and 20 through 32 be stricken, and also held that “plaintiff is not entitled to discover any material contained in or concerning the post-loss investigative files of defendants”. Plaintiff has appealed that order.

Pending resolution of the instant appeal, and acting in reliance on this court’s recent decision in Carden v Allstate Ins. Co. (105 AD2d 1048), defendants reversed their position and served plaintiff with answers to the interrogatories which were the basis for the protective order granted by Special Term. Having unilaterally complied with plaintiff’s demand for interrogatories, defendants, by separate motion in this court, have moved to dismiss the appeal as moot. Moreover, defendants neither filed an opposing brief nor contended upon oral argument that the order should be affirmed. There is no reason for this court to depart from our decision in Carden, in which we held that “[t]o be immune from discovery, defendant must demonstrate that the material sought was prepared exclusively for litigation (Vandenburgh v Columbia Mem. Hosp., 91 AD2d 710, 711)” (Carden v Allstate Ins. Co., supra, p 1049). Defendants have made no such showing and, by their own action in voluntarily serving plaintiff with answers to the controverted interrogatories, have acknowledged plaintiff’s right to the information sought.

Order reversed, on the law, without costs, and motion for protective order denied.

Motion to dismiss appeal as moot denied, without costs. Mahoney, P. J., Main, Weiss, Yesawich, Jr., and Levine, JJ., concur.