Santana v. Seagrave Fire Apparatus, Inc.

248 A.D.2d 458, 668 N.Y.S.2d 933, 1998 N.Y. App. Div. LEXIS 2300

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 9, 1998
• Status: Published

Opinion

—In an action to recover damages for personal injuries and wrongful death, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (R. Goldberg, J.), dated January 31, 1997, as denied that branch of their motion which was to direct the defendants Seagrave Fire Apparatus, Inc., and FWD Corporation to provide complete responses to items 6, 11, 12, 14, 15, 16, 18-22, 28, and 29 of their notice for discovery and inspection.

Ordered that the order is modified, on the law, by deleting therefrom the provision denying that branch of the motion which was to direct the defendants Seagrave Fire Apparatus, Inc., and FWD Corporation to provide complete responses to items 6 and 12 of the plaintiffs’ notice for discovery and inspection, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs.

The respondents refused to provide the materials requested in items 6 and 12 of the plaintiffs’ notice for discovery and inspection on the ground that the materials demanded were prepared in anticipation of litigation (see, CPLR 3101 [d] [2]). However, the conclusory assertion contained in the affirmation of the respondents’ attorney to this effect was insufficient to satisfy the respondents’ burden of proving that such materials are privileged (see, Agovino v Taco Bell 5083, 225 AD2d 569, 571).

The plaintiffs’ remaining contentions are without merit or are academic in light of our determination.

Bracken, J. P., Copertino, Santucci, Florio and McGinity, JJ., concur.