Baratta v. Pallotta

81 A.D.2d 1040, 440 N.Y.S.2d 115, 1981 N.Y. App. Div. LEXIS 11811

Opinion

— Order unanimously reversed, with costs, and motion denied without prejudice to renew within 20 days from the date of service of the order herein. Memorandum: Third-party defendant’s motion for a protective order denying discovery of the results of certain tests was improperly granted (CPLR 3103). A party opposing discovery bears the burden of proving that the material sought was prepared for litigation and, therefore, was immune from disclosure pursuant to CPLR 3101 (subd [d]) (Koump v Smith, 25 NY2d 287, 294; Mobil Oil Corp. v State of New York, 52 AD2d 1033). The attorney’s conclusory allegations were insufficient to meet this burden (Hunt v Joseph, 67 AD2d 697). (Appeal from order of Onondaga Supreme Court — examination before trial — protective order.) Present — Dillon, P. J., Callahan, Doerr, Moule and Schnepp, JJ.