Smith v. Ford Foundation

231 A.D.2d 456, 647 N.Y.S.2d 82

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 19, 1996
• Status: Published

Opinion

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered on or about January 18, 1996, which granted plaintiffs’ motion and third-party defendant’s cross motion to strike appellants’ pleadings to the extent of compelling production of certain documents, unanimously affirmed, with costs.

There is no basis to disturb the motion court’s finding, made after an in camera inspection, that the documents had no more than a "mixed” litigation and business purpose (Commerce & Indus. Ins. Co. v Laufer Vision World, 225 AD2d 313, 314), and were not prepared solely at the direction of counsel or for transmittal to counsel (cf., Matter of Goldstein v New York Daily News, 106 AD2d 323). We also note that the motion was opposed on the basis of a claim of privilege supported only by conclusory assertions with no evidentiary foundation (see, Martino v Kalbacher, 225 AD2d 862). Accordingly, the order to compel was an appropriate exercise of discretion. Appellants never sought partial redaction during the in camera inspection (cf., Commerce & Indus. Ins. Co. v Laufer Vision World, supra), and we decline to consider the request made for the first time on appeal. Concur—Rubin, J. P., Ross, Williams, Tom and Andrias, JJ.