Volpicelli v. Westchester County

102 A.D.2d 853, 476 N.Y.S.2d 623, 1984 N.Y. App. Div. LEXIS 19044

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 11, 1984
• Status: Published

Opinion

— In a wrongful death action, defendant Westchester County appeals from an order of the Supreme Court, Westchester County (Palella, J.), entered October 19, 1983, which denied its motion for an order directing that plaintiff turn over “all statements, notes, summaries or any other record given by or taken from a non-party witness, to wit: Mr. Alex Hernandez”. 11 Order affirmed, with costs, without prejudice to defendant Westchester County to renew its motion, if it be so advised, in accordance herewith. 11 The notes made by plaintiff’s private investigator based upon his contact with the nonparty witness Hernandez constitute material prepared for litigation, which is conditionally exempt from disclosure under CPLR 3101 (subd [d]) (cf. Williams v Metropolitan Transp. Auth., 99 AD2d 530). f While the burden of establishing immunity from discovery rests on the party resisting discovery (see Koump v Smith, 25 NY2d 287; Zimmerman v Nassau Hasp., 76 AD2d 921), once it is established that an item constitutes material prepared for litigation, it is the party seeking disclosure based upon the stated conditions of CPLR 3101 (subd [d]) who has the burden of proof as to those elements (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3101:37, pp 41-42; see Ruggeiro v Board ofEduc., 49 Mise 2d 532; see, also, Parker v New York Tel. Co., 24 AD2d 1067). Inasmuch as the record is bereft of evidence as to even a minimal good-faith effort on the part of defendant Westchester County to contact the nonparty witness Hernandez, whose last known place of employment was furnished by plaintiff, the county has failed to demonstrate that the material sought is no longer available for duplication and that its withholding will result in injustice or undue hardship (CPLR 3101, subd [d]). Accordingly, Special Term properly denied the county’s motion for disclosure (see Parker v New York Tel. Co., supra). We note that the county may renew its motion, if it be so advised, upon a proper showing that the nonparty witness Hernandez is unavailable and that the withholding of the material sought will result in injustice or undue hardship (see Dworkin v Metropolitan Transp. Auth., 54 AD2d 922). Lazer, J. P., Brown, Boyers and Eiber, JJ., concur.