| Geffner v Mercy Med. Ctr. |
| 2015 NY Slip Op 01411 [125 AD3d 802] |
| February 18, 2015 |
| Appellate Division, Second Department |
[*1]
| Rebecca Geffner, Individually and as Executrix ofAlfred Geffner, Deceased, Appellant, v Mercy Medical Center et al.,Respondents, et al., Defendants. |
Rebecca Geffner, Little Neck, N.Y., appellant pro se.
Mulholland, Minion, Duffy, Davey, McNiff & Beyrer, Williston Park, N.Y.(Ronald J. Morelli of counsel), for respondents Mercy Medical Center, Margaret Glier,Rita Regan, Roy A. Rubinstein, M.D., Eric A. Shoenfeld, M.D., and LauraSalemmo.
Kaufman Borgeest & Ryan, LLP, New York, N.Y. (Jacqueline Mandell andDennis J. Dozi of counsel), for respondents Harte Placements, Inc., doing business asNassau-Johrens Registry Agency, Eileen Harte, individually and doing business asNassau-Johrens Registry Agency, and Samuel Hart, individually and doing business asNassau-Johrens Registry Agency.
In an action, inter alia, to recover damages for medical malpractice and wrongfuldeath, the plaintiff appeals from an order of the Supreme Court, Queens County(O'Donoghue, J.), dated February 15, 2012, which denied her motion, inter alia, to vacateso much of a prior order of the same court dated August 11, 2011, as directed her toprovide the defendants with copies of an audio recording of an interview she conductedwith the defendant Nicoletta Starks, and conditionally precluded her from introducing therecording for any purpose at trial if she failed to provide the defendants with copies ofthe recording by the next scheduled conference.
Ordered that the order is affirmed, with one bill of costs payable to the respondentsappearing separately and filing separate briefs.
Attorney work product under CPLR 3101 (c), which is subject to an absoluteprivilege, is generally limited to materials prepared by an attorney, while acting as anattorney, which contain his or her legal analysis, conclusions, theory, or strategy (see Matter of New York CityAsbestos Litig., 109 AD3d 7, 12 [2013]; Salzer v Farm Family Life Ins.Co., 280 AD2d 844, 846 [2001]). "[T]he mere fact that a narrative witness statementis transcribed by an attorney is not sufficient to render the statement 'workproduct' " (People vKozlowski, 11 NY3d 223, 245 [2008]). Contrary to the plaintiff's contention,she did not meet her burden of establishing that the audio recording of an interview sheconducted with the defendant Nicoletta Starks prior to the commencement of the instantaction constituted attorney work product. Among other things, the plaintiff failed toshow that the recording contained elements of opinion, analysis, theory, or strategy(see People v Kozlowski, 11 NY3d at 244; Salzer v Farm Family Life Ins.Co., 280 AD2d at 846; cf. Matter of Condon v Niagara County Dist. Attorney'sOff., 115 AD2d 270 [1985]; but cf. Manning v Sikorskyj, 204 AD2d 976,977 [1994]).
[*2] The plaintiff argues, in thealternative, that the recording constitutes trial preparation material, which is subject to aconditional privilege under CPLR 3101 (d) (2). However, the conclusory assertions setforth in her supporting affidavit are insufficient to meet her burden of establishing, withspecificity, that the recording was prepared "exclusively in anticipation of litigation" (Bombard v Amica Mut. Ins.Co., 11 AD3d 647, 648 [2004]; see CPLR 3101 [d] [2]; Agovino vTaco Bell 5083, 225 AD2d 569, 571 [1996]; Chakmakjian v NYRAC, Inc.,154 AD2d 644, 645 [1989]).
Accordingly, the Supreme Court properly denied the plaintiff's motion to vacate somuch of its prior order dated August 11, 2011, as directed her to provide the defendantswith copies of the recording, and conditionally precluded her from introducing therecording for any purpose at trial if she failed to provide those copies by the nextscheduled conference.
In light of our determination, we need not reach the parties' remaining contentions.Mastro, J.P., Dickerson, Maltese and Barros, JJ., concur.