DiMichel v. South Buffalo Railway Co.

Balio and Lawton, JJ. (dissenting).

We respectfully dissent. Surveillance tapes or films taken of the plaintiff for the purpose of use at trial constitute material prepared solely for litigation and enjoy a conditional privilege from disclosure (see, CPLR 3101 [d] [2]; Greene v Lee, 112 AD2d 140). In the instant case, plaintiff failed to show factually that he has a "substantial need of the materials in the preparation of the case” and that he "is unable without undue hardship to obtain the substantial equivalent of the materials by other means” (CPLR 3101 [d] [2]; emphases added), and the…