Summary
In Mavrikis, the Court held that a conclusory affidavit from the proponent asserting immunity, which briefly stated that all materials sought were prepared in contemplation of litigation, was insufficient to establish that said documents were privileged.
Summary of this case from Lopez v. New York City Hous. Auth.Opinion
September 2, 1993
Appeal from the Supreme Court, New York County (Diane A. Lebedeff, J.).
Emmanuel Mavrikis, plaintiff's husband, died as a result of a fire on respondents' premises. Plaintiff brought this action against respondents ("the Maceys") and against appellant Brooklyn Union Gas Company ("Brooklyn Union"). Brooklyn Union is alleged to have had old gas-lighting piping in the building. Brooklyn Union served upon the Maceys a second supplemental notice for discovery and inspection dated January 29, 1992; and the Maceys moved for a protective order against that notice, contending that it sought discovery of items which are privileged and immune or irrelevant and immaterial. The Maceys challenged all but five of the 22 demands; those five were the demands numbered 1, 2, 5, 17, and 22.
The IAS Court denied the motion as to demand numbered 3, and that denial is affirmed.
The IAS Court granted the motion as to demands numbered 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, and 21, relying on Vernet v Gilbert ( 90 A.D.2d 846) and Hill v Misericordia Hosp. Med. Ctr. ( 91 A.D.2d 915). Those cases, however, involved medical malpractice actions in which the defendants prepared and submitted reports to their malpractice insurance carriers with regard to the claims against them. The burden of demonstrating immunity from discovery is on the party asserting the immunity (Koump v Smith, 25 N.Y.2d 287, 294), and if litigation is only one of the motives of a report, the report is not immune from discovery (Westhampton Adult Home v National Union Fire Ins. Co., 105 A.D.2d 627, 628). Here the Maceys have failed to sustain that burden. The brief affidavit of their carrier that all documents prepared in connection with the fire were made in contemplation of litigation is conclusory and does not establish privilege. The demands numbered 6 and 7, which seek repair reports and the value of the premises before the fire, are relevant in determining the extent of damages caused by the fire and must be responded to. Demands numbered 4 (for the subrogation receipt regarding the incident), 19 (for the amount of fire insurance carried), and 20 (for the amount of fire insurance paid) are not relevant to the cause of the fire, however.
Concur — Murphy, P.J., Sullivan, Milonas, Asch and Nardelli, JJ.