Sheremeta v. New York Central Mutual Fire Insurance

—Order unanimously reversed on the law without costs and motion denied. Memorandum: Supreme Court improvidently exercised its discretion in granting plaintiffs’ motion for a protective order (cf., Oppenheimer v Shubitowski, 92 AD2d 1021). The fact that defendant conducted an examination under oath and required the production of documents during its investigation of plaintiffs’ insurance claim prior to the commencement of this action does not preclude defendant from seeking production of the same documents and an examination before trial of plaintiffs pursuant to CPLR article 31 (see, Marcus & Sons v Federal Ins. Co., 24 AD2d 922; Waugh v Firemen’s Fund Ins. Co., 52 Misc 2d 141; see also, Sentry Ins. v Shivers, 164 FRD 255). (Appeal from Order of Supreme Court, Erie County, Cosgrove, J. — Discovery.) Present — Pine, J. P., Wisner, Hurlbutt and Balio, JJ.