| Kin Hwa Ku v City of New York |
| 2013 NY Slip Op 03064 [106 AD3d 698] |
| May 1, 2013 |
| Appellate Division, Second Department |
| Kin Hwa Ku et al., Respondents, v City of NewYork et al., Appellants. |
—[*1] Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz, New York, N.Y.(Rhonda E. Kay of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants appealfrom so much of an order of the Supreme Court, Kings County (Bayne, J.), dated July 20,2012, as granted that branch of the plaintiffs' motion which was to compel discovery ofcertain prelitigation written statements given by the nonparty Marilyn Rosa and by thedefendant Konniyoor Sunny.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and that branch of the plaintiffs' motion which was to compel discovery of certainprelitigation written statements given by the nonparty Marilyn Rosa and by the defendantKonniyoor Sunny is denied.
On October 23, 2009, the injured plaintiff, a pedestrian, allegedly was injured whenshe was struck by a school bus as she crossed a street in Brooklyn. At the time of theaccident, the bus was being operated by the defendant Konniyoor Sunny, and was ownedby the defendants Boro-Wide Buses (hereinafter Boro-Wide) and Jofaz Transportation,Inc. (hereinafter Jofaz). Also at the time, Boro-Wide and Jofaz had a contract with thedefendants City of New York, New York City Department of Transportation, and NewYork City Department of Education to provide transportation services. Approximatelyone week after the accident occurred, the liability insurer for Boro-Wide and Jofaz sentan investigator to take statements (hereinafter the subject statements) from the nonpartyMarilyn Rosa, a school bus matron who was on the bus at the time of the accident, andfrom the defendant driver of the bus. On May 11, 2010, the plaintiffs commenced thisaction. In May 2012, after learning of the existence of the subject statements duringRosa's deposition, the plaintiffs moved, inter alia, to compel discovery of the subjectstatements. In an order dated July 20, 2012, the Supreme Court granted such disclosurewithout explanation.
Statements given to a liability insurer's claims department which are solely "preparedin anticipation of litigation" are entitled to qualified immunity from discovery pursuant toCPLR 3101 (d) (2) (seeSigelakis v Washington Group, LLC, 46 AD3d 800 [2007]). The burden ofproving that a statement is privileged as material prepared solely in anticipation oflitigation or trial is on the party opposing discovery (see Agovino v Taco Bell5083, 225 AD2d 569, 571 [1996]; Crazytown Furniture v Brooklyn Union GasCo., 145 AD2d 402 [1988]). Here, the defendants satisfied this evidentiary burdenby [*2]the submission of affidavits from the insurer'sclaim adjuster and the investigator who transcribed the subject statements whichdemonstrated that the statements were gathered for the insurer solely for the purpose ofanticipated litigation (see Davila v Environmental Prods. & Servs., 270 AD2d224 [2000]; Williams v Metropolitan Transp. Auth., 99 AD2d 530 [1984]; cf.Santana v Seagrave Fire Apparatus, 248 AD2d 458 [1998]). Accordingly, thestatements were not discoverable and the branch of the plaintiffs' motion which was tocompel discovery of them should have been denied (see CPLR 3101 [d] [2]).
The plaintiffs' remaining contention is improperly raised for the first time on appeal(see NYU Hosp. for JointDiseases v Country Wide Ins. Co., 84 AD3d 1043 [2011]). Dillon, J.P., Austin,Sgroi and Cohen, JJ., concur.