Rose Sherman et al., Plaintiffs, v. M. Lowenstein & Sons, Inc., et al., Defendants, 42 Misc. 2d 771

Lester Holtzman, J. Motion, by defendant Adorable Pajama Company, Inc., hereinafter referred to as “Company”, for leave to reargue plaintiffs’ motion to vacate its notice for the discovery and production of a certain laboratory report is granted. It appears that the original pair of pajamas involved in the action, allegedly manufactured by defendant Company, was partly burned to ashes and the remainder lost.

Plaintiff Ernest Sherman allegedly purchased a pair of pajamas similar to the original pair and conducted a laboratory test upon it. “In the opinion of the court the laboratory report constitutes material prepared fof litigation (CPLR 3101, subd. [d]) and not the work product of an attorney.” (Sherman v. Lowenstein & Sons, 42 Misc 2d 770; emphasis supplied.) The prior motion was granted on the ground that defendant Company could also conduct its own laboratory tests upon numerous similar pairs, since it manufactured them, and the court assumed they were still available to it.

Assuming, as plaintiffs contend, that the pair purchased by plaintiff Ernest Sherman is similar to the original one, the affidavit of defendant Company’s president, submitted on this motion, is sufficient to demonstrate its inability to conduct laboratory tests upon similar pairs of pajamas.

Accordingly, plaintiffs’ motion to vacate defendant Company’s notice is granted to the extent of modifying it as follows: Plaintiffs shall produce the pair of pajamas tested for inspection, as well as furnish upon request a portion thereof to defendant Company unless plaintiffs produce a copy of their laboratory report for discovery. In the event plaintiffs no longer have the pair of pajamas tested, they shall produce a copy of the laboratory report for discovery.

The aforesaid ¡discovery shall be held at the location and time specified in the notice, on a date to be mutually agreed upon or, in the absence thereof, fixed by the court in the order to be entered hereon. In all other respects, plaintiffs’ motion is denied. Settle order.