Floyd L. Fonda, Appellant, v. Nationwide Mutual Fire Insurance Company, Respondent

Floyd L. Fonda, Appellant, v Nationwide Mutual Fire Insurance Company, Respondent. [MAJORITY] Order unanimously modified and, as modified, affirmed, with costs to plaintiff, in accordance with the following memorandum: On its motion for a protective order, defendant, a fire insurance company, failed to sustain its burden of showing that the report of its investigator was privileged. Its affidavit in support of the motion is devoid of any facts indicating that the report was created exclusively in preparation for litigation (see Hawley v Travelers Ind. Co., 90 AD2d 684; Yannick v Tube City Iron & Metal Co., 77 AD2d 623). We may not consider matters in a party’s brief which are not contained in the record (Interstate Window Cleaning Co. v Morse/Diesel Inc., 89 AD2d 820). The order appealed from should be modified, therefore, by deleting therefrom the statement that the report of defendant’s investigator is privileged and need not be furnished. (Appeal from order of Supreme Court, Onondaga County, Donovan, J. — disclosure.) Present — Doerr, J. P., Boomer, Green, O’Donnell and Schnepp, JJ.