STATE OF NEW YORK

SUPREME COURT: COUNTY OF CHAUTAUQUA

__________________________________

LYLE PORTER and

GEORGIA PORTER

Plaintiff,

vs Index #H-07318

SEARS, ROEBUCK & COMPANY and

EDWARD J. DEBARTOLO CORPORATION

Defendant.

__________________________________

BALLOW, BRAISTED, O'BRIEN & RUSIN, P.C.

(Michael D. Braisted, Esq. of Counsel)

for Plaintiff

DAMON & MOREY LLP

(Kathleen M. Mann, Esq. of Counsel)

for Defendant

DECISION and ORDER

GERACE, J.

Defendants seek to examine a diary kept by plaintiff,

presumably at the suggestion of his attorney. The Court

reviewed the diary in camera. It falls within the category

of undiscoverable work product. Defendant may not examine

it.

If plaintiff needs it to refresh his recollection at

deposition or trial, defendant will have an opportunity at

that time.

THIS IS THE DECISION AND ORDER OF THIS COURT.

Dated: October , 1995

Mayville, New York

____________________________

JOSEPH GERACE

Supreme Court Justice

To all Counsel:

Please take notice that a DECISION and ORDER of

which the within is a copy, is duly granted in the above

entitled action on the day of , 1995, and

duly entered in the office of the Clerk of the County of

Chautauqua on the same date.