I am in accord with the reasoning and conclusion reached by my brother Sandler. However, I would add an additional reason for granting the protective order.
Although the complaint is framed in tort, i.e., interference with the “fiduciary and contractual duty on the part” of one or more employees “with far-reaching responsibilities in respect to the business operations of Hertz”, it is much akin to an accounting proceeding. True it is that Hertz and Avis were and are business competitors and there does not exist between them a fiduciary or trust relation respecting the subject matter of the controversy here in question. Technically, therefore, the action is not one for an accounting (1 NY Jur 2d, Accounts and Accounting, § 29). Essentially, however, the action is bottomed on the alleged breach of such a fiduciary relationship — a breach *252allegedly induced by Avis. In the circumstances of this case, where the documents sought number well over 100,000 with a host relevant only peripherally, if relevant at all, I would apply the discovery rule applicable to accounting procedures, i.e., that examination as to the loss incurred by Hertz (concededly nonexistent) or the benefit accruing to Avis, purportedly resulting from Vittoria’s breach of his fiduciary relationship to Hertz should be deferred until the right to recovery has first been established (cf. Wood v Cross Props., 5 AD2d 853).
Asch, Lynch and Alexander, JJ., concur with Sandler, J. P.; Bloom, J., concurs in an opinion.
Order, Supreme Court, New York County, entered on March 21,1984, unanimously modified, on the law, the facts and in the exercise of discretion, to deny Hertz’ motion to compel Avis to produce the documents listed in paragraphs 1 and 2 of the February 17, 1984 notice, and otherwise affirmed, without costs and without disbursements, and without prejudice to the service by Hertz of a proper disclosure demand seeking information relevant to a legally cognizable claim for damages.