JP Foodservice Distributors, Inc. v. Sorrento, Inc.

305 A.D.2d 266, 758 N.Y.S.2d 805

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 20, 2003
• Status: Published

Opinion

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered October 11, 2002, which, to the extent appealed from as limited by the brief, granted defendants’ motion to compel the production of documents responsive to document requests numbered 21 through 25 in defendant Sorrento, Inc.’s first notice for discovery and inspection, unanimously affirmed, with costs.

The motion court properly exercised its discretion in requiring the production of documents responsive to the above-specified demands. Plaintiff failed to meet its burden to establish that the audit report sought by defendants was prepared primarily, if not solely, in anticipation of litigation (see Zampatori v United Parcel Serv., 94 AD2d 974 [1983]; Chemical Bank v National Union Fire Ins. Co., 70 AD2d 837 [1979]). It also failed to meet its burden to identify any other responsive, putatively privileged documents (see McCarthy v Klein, 238 AD2d 552 [1997]). Concur — Nardelli, J.P., Saxe, Sullivan, Wallach and Gonzalez, JJ.