| Colantonio v Mercy Med. Ctr. |
| 2013 NY Slip Op 00060 [102 AD3d 649] |
| January 9, 2013 |
| Appellate Division, Second Department |
| Anthony Colantonio, Appellant, v MercyMedical Center, et al., Respondents. |
—[*1] Ward Greenberg Heller & Reidy LLP, Rochester, N.Y. (Thomas S. D'Antonio andAnitra Das of counsel), for respondents.
In an action to recover damages for defamation, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Galasso, J.), dated August 1, 2011, which, after anin camera inspection, denied his motion to compel the defendants to produce certaindocuments listed in their privilege log and supplemental privilege log.
Ordered that the order is modified, on the facts and in the exercise of discretion, bydeleting the provisions thereof denying those branches of the plaintiff's motion whichwere to compel the defendants to produce documents designated as numbers 88 and 89 inthe defendants' privilege log and number 11 in the defendants' supplemental privilegelog, and substituting therefor provisions granting those branches of the motion; as somodified, the order is affirmed, without costs or disbursements.
" 'Generally, the trial court is afforded broad discretion in supervising disclosure andits determinations will not be disturbed unless that discretion has been clearly abused. . . However, the Appellate Division is vested with its own discretion andcorresponding power to substitute its own discretion for that of the trial court, even in theabsence of abuse' " (Matter ofAstor, 62 AD3d 867, 868 [2009], quoting Those Certain Underwriters at Lloyds, London v Occidental Gems,Inc., 11 NY3d 843, 845 [2008]).
Upon our in camera inspection of the documents at issue on appeal, we find that theSupreme Court providently exercised its discretion in denying those branches of theplaintiff's motion which were to compel the defendants to produce the documentswithheld based on attorney-client privilege (see CPLR 3101 [b]; 4503 [a]; Roswell Park Cancer Inst. Corp. vSodexo Am., LLC, 68 AD3d 1720, 1721-1722 [2009]; Robert V. StrausProds. v Pollard, 289 AD2d 130, 131 [2001]; Charter One Bank v MidtownRochester, 191 Misc 2d 154, 164-166 [2002]), as well as various statutes governinginformation gathered or provided by hospitals (see Public Health Law§§ 2805-m, 230 [11]; Education Law § 6527 [3]; Klingner v Mashioff, 50 AD3d746, 747 [2008]; Atkins v Guest, 201 AD2d 411, 412 [1994]).[*2]
The defendants contend that four documentscharacterized in the privilege log and supplemental privilege log as attorney workproduct (see CPLR 3101 [c]) were, in the alternative, properly withheld asmaterials prepared in anticipation of litigation (see CPLR 3101 [d]). Thiscontention, raised for the first time on appeal, is not properly before this Court (see Howard Rosengarten, P.C. vHott, 49 AD3d 328, 328-329 [2008]). Moreover, the defendants failed to meettheir burden of establishing that three of the four documents, namely those designated asnumbers 88 and 89 in the privilege log and number 11 in the supplemental privilege log,constitute attorney work product (see Bib Constr. Co. v City of Poughkeepsie,260 AD2d 590, 591 [1999]; Doe v Poe, 244 AD2d 450, 451-452 [1997],affd 92 NY2d 864 [1998]; Bras v Atlas Constr. Corp., 153 AD2d 914,915 [1989]; see also Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371,381 [1991]). Accordingly, the Supreme Court improvidently exercised its discretion indenying those branches of the plaintiff's motion which were to compel the defendants toproduce those documents.
In light of the narrow scope of the parties' stipulation relating to documentproduction, the plaintiff's contentions regarding the defendants' objections to sealing therecord and prior disclosures of certain documents are not properly before this Court (see Goldberger v Eisner, 90AD3d 835, 836 [2011]; Mandia v King Lbr. & Plywood Co., 179 AD2d150, 159-160 [1992]; Nishman v De Marco, 76 AD2d 360, 366 [1980]). Rivera,J.P., Balkin, Leventhal and Hinds-Radix, JJ., concur.