Moon v. MacKay

64 A.D.2d 1022, 409 N.Y.S.2d 305, 1978 N.Y. App. Div. LEXIS 13041

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 22, 1978
• Status: Published

Opinion

—Order unanimously affirmed, with costs. Memorandum: Full disclosure of all material and necessary evidence is the broad rule posited by CPLR 3101 (subd [a]). Among the limited exceptions is the one at issue here, i.e., the qualified immunity granted material prepared for litigation (CPLR 3101, subd [d]). The record reveals that the material sought to be discovered was an "incident report” made during the course of plaintiff’s surgery and submitted by a nurse to her employer, the defendant hospital. The conflicting affidavits presented are insufficient for the hospital to sustain its burden that the "incident report” was material prepared solely for litigation (Koump v Smith, 25 NY2d 287, 294). (Appeal from order of Monroe Supreme Court—discovery.) Present—Marsh, P. J., Cardamone, Simons, Dillon and Schnepp, JJ.