| Ligoure v City of New York |
| 2015 NY Slip Op 04456 [128 AD3d 1027] |
| May 27, 2015 |
| Appellate Division, Second Department |
[*1]
| Ricardo Ligoure, Respondent, v City of NewYork et al., Appellants, et al., Defendant. |
London Fischer LLP, New York, N.Y. (Nicholas O. Paslow of counsel), forappellants.
G.K. Law Practice P.C. (Sacks and Sacks LLP, New York, N.Y. [Scott N. Singerand Victoria V. Bach], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants City of NewYork, New York City Economic Development Corporation, Turner ConstructionCompany, Rite-Way Demolition, Inc., and Rite-Way Internal Removal, Inc., appeal, aslimited by their brief, from so much of an order of the Supreme Court, Kings County(Solomon, J.), dated February 27, 2014, as denied that branch of their motion which waspursuant to CPLR 3103 for a protective order preventing the disclosure of certainwitness statements and certain investigation and inspection reports.
Ordered that the order is affirmed insofar as appealed from, with costs.
CPLR 3101 (a) mandates "full disclosure of all matter material and necessary in theprosecution or defense of an action." Unlimited disclosure is not mandated, however, anda court may issue a protective order pursuant to CPLR 3103 denying, limiting,conditioning or regulating the use of any disclosure device "to prevent unreasonableannoyance, expense, embarrassment, disadvantage, or other prejudice to any person orthe courts" (CPLR 3103 [a]; seeNimkoff v Central Park Plaza Assoc., LLC, 123 AD3d 679, 680-681 [2014]; Diaz v City of New York, 117AD3d 777 [2014]; Countyof Suffolk v Long Is. Power Auth., 100 AD3d 944, 946 [2012]). "Thesupervision of disclosure and the setting of reasonable terms and conditions therefor restswithin the sound discretion of the trial court and, absent an improvident exercise of thatdiscretion, its determination will not be disturbed" (Mattocks v White MotorCorp., 258 AD2d 628, 629 [1999] [citation omitted]; see Daniels v City of NewYork, 117 AD3d 981 [2014]; Montalvo v CVS Pharm., Inc., 102 AD3d 842, 843[2013]).
In support of that branch of their motion which was pursuant to CPLR 3103 for aprotective order preventing the disclosure of certain witness statements and certaininvestigation and inspection reports, the appellants contended that such evidence wasprivileged as it was prepared in anticipation of litigation (see CPLR 3101 [d] [2])."The burden 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 Koump v Smith, 25 NY2d [*2]287, 294 [1969]; Bombard v Amica Mut. Ins. Co., 11 AD3d 647, 648[2004]). Such burden is met "by identifying the particular material with respect to whichthe privilege is asserted and establishing with specificity that the material was preparedexclusively in anticipation of litigation" (Ural v Encompass Ins. Co. of Am., 97 AD3d 562, 566[2012]; see Geffner v MercyMed. Ctr., 125 AD3d 802 [2015]; New York Schools Ins. Reciprocal v Milburn Sales Co., Inc.,105 AD3d 716 [2013]; Crazytown Furniture v Brooklyn Union Gas Co., 145AD2d 402 [1988]).
Here, the appellants failed to meet their burden of establishing that the requestedmaterial was prepared solely in anticipation of litigation and, therefore, is protected fromdisclosure by the qualified immunity privilege of CPLR 3101 (d) (2). An attorney'saffirmation containing conclusory assertions that requested materials are conditionallyimmune from disclosure pursuant to CPLR 3101 (d) (2) as material prepared inanticipation of litigation, without more, is insufficient to sustain a party's burden ofdemonstrating that the materials were prepared exclusively for litigation (see Koumpv Smith, 25 NY2d 287 [1969]; New York Schools Ins. Reciprocal v MilburnSales Co., Inc., 105 AD3d at 718).
Accordingly, the Supreme Court properly denied the subject branch of the appellants'motion. Dillon, J.P., Leventhal, Chambers and Maltese, JJ., concur.