June 25, 2013
915 2nd Pub Inc., doing business as Thady Con's Bar & Restaurant, et al., Plaintiffs-Respondents,
QBE Insurance Corporation, Defendant-Appellant.
Abrams, Gorelick, Friedman & Jacobson, LLP, New York (Chris Christofides of counsel), for appellant.
Carman, Callahan & Ingham, LLP, Farmingdale (James M. Carman of counsel), for respondents.
Andrias, J.P., Friedman, Sweeny, Saxe, Richter, JJ.
Order, Supreme Court, New York County (Paul Wooten, J.), entered April 30, 2012, which, insofar as appealed from as limited by the briefs, granted plaintiffs' motion to compel production of an appraisal report, unanimously reversed, on the law, without costs, and the motion denied.
There is no dispute that the subject appraisal report was prepared by an expert at defense counsel's direction as an aid in litigation, and thus, the report was protected as attorney work product (see Hudson Ins. Co. v Oppenheim, 72 A.D.3d 489 [1st Dept 2010]; CPLR 3101[c]). The single notation in the claim file that the report was sent to plaintiffs' prior counsel is insufficient to show waiver of the privilege, since plaintiffs fail to provide evidence supporting their allegation that the disclosure was made; they did not set forth evidence of any attempts made to obtain the findings from prior counsel; they cannot explain why the findings were never given to them by prior counsel; and they have not produced anyone from prior counsel who has ever seen the report.