| New York Schools Ins. Reciprocal v Milburn Sales Co.,Inc. |
| 2013 NY Slip Op 02227 [105 AD3d 716] |
| April 3, 2013 |
| Appellate Division, Second Department |
| New York Schools Insurance Reciprocal, as Subrogee ofWest Babylon Union Free School District, Respondent, v Milburn Sales Co.,Inc., Doing Business as Milburn Carpet One Floors & Home and Another,Appellant. |
—[*1] Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale,N.Y. (Kathryn M. Beer of counsel), for respondent.
In an action to recover damages for injury to property, the defendant appeals from anorder of the Supreme Court, Suffolk County (Spinner, J.), entered January 10, 2012,which granted the plaintiff's motion pursuant to CPLR 2304 to quash certain subpoenasand denied its cross motion to compel compliance with the subpoenas and the relatednotices to take the depositions of certain nonparties, "with leave to renew in the eventthat further discovery in this action demonstrates defendant is entitled to such relief."
Ordered that the order is modified, on the law and in the exercise of discretion, (1) bydeleting the provision thereof granting that branch of the plaintiff's motion which was toquash the subpoenas insofar as they sought documents and substituting therefor aprovision denying that branch of the motion; and (2) by deleting the provision thereofdenying that branch of the defendant's cross motion which was to compel compliancewith the subpoenas insofar as they sought documents and substituting therefor aprovision granting that branch of the cross motion; as so modified, the order is affirmed,without costs or disbursements.
This action has its genesis in a fire which occurred on February 18, 2010, at SouthBay Elementary School in West Babylon, and caused extensive damage. On the day ofthe fire, the defendant, Milburn Sales Co., Inc., doing business as Milburn Carpet OneFloors & Home, and doing business as Milburn Flooring Mills (hereinafter Milburn), hadbeen performing painting and sanding work at the school gym. The plaintiff, New YorkSchools Insurance Reciprocal, as subrogee of West Babylon Union Free School District,retained the services of nonparty Russo Consultants, Inc. (hereinafter Russo), toinvestigate the loss. The plaintiff admits that three Russo employees were present duringthe on-scene fire investigation conducted by the Town of Babylon Fire Marshal on thenight of the fire, on the day after the fire, and on February 22, 2010. Six days after thefire, in a letter to Milburn and its insurer dated February 24, 2010, the plaintiff's counselstated that "[a]lthough the exact cause of the fire is still under investigation, preliminaryinvestigation has uncovered physical evidence that supports a finding that paintingsupplies and other material were disposed of in an improper manner by employees ofMilburn." The Fire Marshal's report concluded [*2]thatthe fire was caused by "careless discarding of material known to spontaneouslycombust."
After the commencement of this action, Milburn served subpoenas seekingdocumentation from Russo, as well as the deposition testimony of the three Russoemployees referred to above. At the same time, Milburn also separately served uponthese individuals "notice[s] to take non-party depositions." The plaintiff moved to quashthe subpoenas pursuant to CPLR 2304, arguing, inter alia, that the material requested wasprepared in anticipation of litigation, and that Milburn had not shown a substantial needfor such material. Milburn opposed the motion, and cross-moved to compel compliancewith the subpoenas and the related notices to take the depositions. Without explanation,the Supreme Court granted the motion to quash, and denied the cross motion "with leaveto renew in the event that further discovery in this action demonstrates defendant isentitled to such relief."
The general rule is that there shall be "full disclosure of all matter material andnecessary in the prosecution or defense of an action" (CPLR 3101 [a]). However,materials prepared in anticipation of litigation or for trial may be obtained only upon ashowing that the party seeking discovery has "substantial need" for the materials and isunable to obtain the information without "undue hardship" (CPLR 3101 [d] [2]). "Theburden of proving that a statement is privileged as material prepared solely inanticipation of litigation or trial is on the party opposing discovery" (Sigelakis v Washington Group,LLC, 46 AD3d 800, 800 [2007]; see Agovino v Taco Bell 5083, 225AD2d 569, 571 [1996]; Crazytown Furniture v Brooklyn Union Gas Co., 145AD2d 402 [1988]). More particularly, "the party asserting the privilege that materialsought through discovery was prepared exclusively in anticipation of litigation. . . bears the burden of demonstrating that the material it seeks to withholdis immune from discovery (see Koump v Smith, 25 NY2d 287, 294 [1969]) byidentifying the particular material with respect to which the privilege is asserted andestablishing with specificity that the material was prepared exclusively in anticipationof litigation" (Ural vEncompass Ins. Co. of Am., 97 AD3d 562, 566 [2012] [emphasis added];see Chakmakjian v NYRAC, Inc., 154 AD2d 644, 645 [1989]; CrazytownFurniture v Brooklyn Union Gas Co., 145 AD2d 402 [1988]). An attorney'saffirmation containing conclusory assertions that requested documents are conditionallyimmune from disclosure pursuant to CPLR 3101 (d) (2) as material prepared inanticipation of litigation, without more, is insufficient to sustain the movant's burden ofdemonstrating that the materials were prepared exclusively for litigation (see Koumpv Smith, 25 NY2d 287 [1969]; Santana v Seagrave Fire Apparatus, 248AD2d 458 [1998]; Galyas v Giordano, 241 AD2d 539 [1997]; Merrick vNiagara Mohawk Power Corp., 144 AD2d 878 [1988]).
Here, the plaintiff failed to meet its burden of establishing that the requested materialwas prepared solely in anticipation of litigation and, thus, is protected from disclosure bythe qualified immunity privilege of CPLR 3101 (d) (2). Indeed, the plaintiff did notarticulate any actual basis or specific reasoning for its conclusory assertion thatinvestigative material prepared by Russo was generated exclusively in anticipation oflitigation. Moreover, inasmuch as Russo's employees investigated the premisesimmediately after the fire occurred on February 18, 2010, it is clear that they werepresent on the scene before any determination had been made as to the cause of the fire.In fact, in his February 24, 2010, letter to Milburn, the plaintiff's counsel acknowledgedthat the cause of the fire had yet to be determined. Under these circumstances, thematerials generated by the Russo employees as a result of their investigations, whichwere conducted during the week immediately after the fire occurred, were not "preparedin anticipation of [this] litigation" (CPLR 3101 [d] [2]), since such subrogation litigationcould not have been anticipated until the cause of the fire had been ascertained. Since theplaintiff did not establish that the requested material was protected by the qualifiedimmunity privilege set forth in CPLR 3101 (d) for material prepared exclusively inanticipation of litigation, there was no need for Milburn to establish that it had"substantial need" for the material or would sustain "undue hardship" if the material werenot produced. Moreover, Milburn demonstrated that the document disclosure sought byits subpoenas was relevant, material, and necessary (see Tenore v Tenore, 45 AD3d 571, 571-572 [2007]) to itsdefense of this action. Accordingly, it was an improvident exercise of the SupremeCourt's discretion for it to grant that branch of the plaintiff's motion which was to quashMilburn's subpoenas insofar as they sought the requested documentation, and to denythat branch of Milburn's motion which was to compel compliance therewith (see Kondratick v Orthodox Churchin Am., 73 AD3d 708 [2010]; Hartford v Black & Decker [US], 221AD2d 986 [1995]; cf. Lamitie v Emerson Elec. Co.-White Rodgers Div., 208[*3]AD2d 1081 [1994]). However, under thecircumstances of this case, the court providently exercised its discretion in denying thatbranch of Milburn's cross motion which was to compel compliance with the notices totake the depositions of the three Russo employees, with leave to renew such motion afterfurther discovery. Dillon, J.P., Angiolillo, Leventhal and Sgroi, JJ., concur.