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Valerie A. Wheeler v. Brian Frank et al

State of New York Supreme Court, Appellate Division Third Judicial Department


December 20, 2012

VALERIE A. WHEELER, RESPONDENT,
v.
BRIAN FRANK ET AL., APPELLANTS.

Appeal from an order of the Supreme Court (Coccoma, J.), entered September 26, 2011 in Otsego County, which granted plaintiff's motion to compel certain disclosure.

The opinion of the court was delivered by: Lahtinen, J.

MEMORANDUM AND ORDER

Calendar Date: November 20, 2012

Before: Peters, P.J., Rose, Lahtinen, Malone Jr. and Garry, JJ.

Plaintiff commenced this personal injury action alleging that she was attacked by a dog at defendants' home. During examinations before trial, defendant Darlene Frank and her son indicated that, before testifying, they had briefly looked at statements that they had given to an insurance adjuster shortly after the incident. It is not apparent from the record, however, whether the statements were used to refresh their recollection. Plaintiff nonetheless requested copies of the statements. Defendants refused, asserting that the statements constituted materials prepared for litigation. Plaintiff's motion to compel disclosure of the statements was granted and defendants appeal.

We affirm. Broad discretion is typically accorded the trial court's supervision of disclosure (see e.g. Di Mascio v General Elec. Co., 307 AD2d 600, 601 [2003]). Generally, "the burden is on the party resisting disclosure to show that the materials sought were prepared solely for litigation and this burden cannot be satisfied with wholly conclusory allegations" (Claverack Coop. Ins. Co. v Nielsen, 296 AD2d 789, 789 [2002] [internal citation omitted]; see Friend v SDTC-Center for Discovery, Inc., 13 AD3d 827, 829 [2004]). In opposition to plaintiff's motion, defendants relied entirely upon their attorney's affirmation, which merely asserted, in relevant part, that the statements "were prepared in anticipation of litigation." This conclusory assertion failed to satisfy defendants' burden (see Pinkans v Hulett, 156 AD2d 877, 878 [1989]; see also Agovino v Taco Bell 5083, 225 AD2d 569, 571 [1996]). Supreme Court did not err and acted within its discretion in granting plaintiff's motion (see Claverack Coop. Ins. Co. v Nielsen, 296 AD2d at 790).

Peters, P.J., Rose, Malone Jr. and Garry, JJ., concur.

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20121220

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