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Ligoure v. City of N.Y.

Supreme Court, Appellate Division, Second Department, New York.
May 27, 2015
9 N.Y.S.3d 678 (N.Y. App. Div. 2015)

Opinion

2014-02730

05-27-2015

Ricardo LIGOURE, respondent, v. CITY OF NEW YORK, et al., appellants, et al., defendant.

London Fischer LLP, New York, N.Y. (Nicholas O. Paslow of counsel), for appellants.  G.K. Law Practice P.C. (Sacks and Sacks LLP, New York, N.Y. [Scott N. Singer and Victoria V. Bach ], of counsel), for respondent.


London Fischer LLP, New York, N.Y. (Nicholas O. Paslow of counsel), for appellants.G.K. Law Practice P.C. (Sacks and Sacks LLP, New York, N.Y. [Scott N. Singer and Victoria V. Bach ], of counsel), for respondent.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and JOSEPH J. MALTESE, JJ.

Opinion In an action to recover damages for personal injuries, the defendants City of New York, New York City Economic Development Corporation, Turner Construction Company, Rite–Way Demolition, Inc., and Rite–Way Internal Removal, Inc., appeal, as limited 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 was pursuant to CPLR 3103 for a protective order preventing the disclosure of certain witness 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 the prosecution or defense of an action.” Unlimited disclosure is not mandated, however, and a court may issue a protective order pursuant to CPLR 3103 denying, limiting, conditioning or regulating the use of any disclosure device “to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” (CPLR 3103 [a] ; see Nimkoff v. Central Park Plaza Assoc., LLC, 123 A.D.3d 679, 680–681, 997 N.Y.S.2d 698 ; Diaz v. City of New York, 117 A.D.3d 777, 985 N.Y.S.2d 695 ; County of Suffolk v. Long Is. Power Auth., 100 A.D.3d 944, 946, 954 N.Y.S.2d 619 ). “The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed” (Mattocks v. White Motor Corp., 258 A.D.2d 628, 629, 685 N.Y.S.2d 764 [citation omitted]; see Daniels v. City of New York, 117 A.D.3d 981, 986 N.Y.S.2d 516 ; Montalvo v. CVS Pharm., Inc., 102 A.D.3d 842, 843, 958 N.Y.S.2d 459 ).

In support of that branch of their motion which was pursuant to CPLR 3103 for a protective order preventing the disclosure of certain witness statements and certain investigation and inspection reports, the appellants contended that such evidence was privileged 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 in anticipation of litigation or trial is on the party opposing discovery” (Sigelakis v. Washington Group, LLC, 46 A.D.3d 800, 800, 848 N.Y.S.2d 272 ; see Koump v. Smith, 25 N.Y.2d 287, 294, 303 N.Y.S.2d 858, 250 N.E.2d 857 ; Bombard v. Amica Mut. Ins. Co., 11 A.D.3d 647, 648, 783 N.Y.S.2d 85 ). Such burden is met “by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation” (Ural v. Encompass Ins. Co. of Am., 97 A.D.3d 562, 566, 948 N.Y.S.2d 621 ; see Geffner v. Mercy Med. Ctr., 125 A.D.3d 802 ; New York Schools Ins. Reciprocal v. Milburn Sales Co., Inc., 105 A.D.3d 716, 963 N.Y.S.2d 152 ; Crazytown Furniture v. Brooklyn Union Gas Co., 145 A.D.2d 402, 535 N.Y.S.2d 401 ).

Here, the appellants failed to meet their burden of establishing that the requested material was prepared solely in anticipation of litigation and, therefore, is protected from disclosure by the qualified immunity privilege of CPLR 3101(d)(2). An attorney's affirmation containing conclusory assertions that requested materials are conditionally immune from disclosure pursuant to CPLR 3101(d)(2) as material prepared in anticipation of litigation, without more, is insufficient to sustain a party's burden of demonstrating that the materials were prepared exclusively for litigation (see Koump v. Smith, 25 N.Y.2d 287, 303 N.Y.S.2d 858, 250 N.E.2d 857 ; New York Schools Ins. Reciprocal v. Milburn Sales Co., Inc., 105 A.D.3d at 718, 963 N.Y.S.2d 152 ).

Accordingly, the Supreme Court properly denied the subject branch of the appellants' motion.


Summaries of

Ligoure v. City of N.Y.

Supreme Court, Appellate Division, Second Department, New York.
May 27, 2015
9 N.Y.S.3d 678 (N.Y. App. Div. 2015)
Case details for

Ligoure v. City of N.Y.

Case Details

Full title:Ricardo LIGOURE, respondent, v. CITY OF NEW YORK, et al., appellants, et…

Court:Supreme Court, Appellate Division, Second Department, New York.

Date published: May 27, 2015

Citations

9 N.Y.S.3d 678 (N.Y. App. Div. 2015)
128 A.D.3d 1027
2015 N.Y. Slip Op. 4456

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