Wheeler v. Frank

• Decision Date: 20 December 2012
• Citation: Wheeler v. Frank, 101 A.D.3d 1449, 955 N.Y.S.2d 538, 2012 N.Y. Slip Op. 8863 (N.Y. App. Div. 2012)
• Parties: Valerie A. WHEELER, Respondent, v. Brian FRANK et al., Appellants.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 1449

955 N.Y.S.2d 538

2012 N.Y. Slip Op. 08863

Valerie A. WHEELER, Respondent,

v.Brian FRANK et al., Appellants.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 20, 2012.

Gozigian, Washburn & Clinton, Cooperstown (E.W. Garo Gozigian of counsel), for appellants.

Thomas R. Monks, Rochester, for respondent.

Before: PETERS, P.J., ROSE, LAHTINEN, MALONEJR. and GARRY, JJ.

LAHTINEN, J.

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.

Plaintiff commenced this personal injury action alleging that she was attacked by a dog at defendants' home.During examinations before trial, defendantDarlene 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.

*539We affirm.Broad discretion is typically accorded the trial court's supervision of disclosure ( see e.g.Di Mascio v. General Elec. Co.,307 A.D.2d 600, 601, 762 N.Y.S.2d 696[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 A.D.2d 789, 789, 745 N.Y.S.2d 604[2002][internal citation omitted];seeFriend v. SDTC–Center for Discovery, Inc.,13 A.D.3d 827, 829, 787 N.Y.S.2d 163[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 ( seePinkans v. Hulett,156 A.D.2d 877, 878, 549 N.Y.S.2d 863[1989];see alsoAgovino v. Taco Bell 5083,225 A.D.2d 569, 571, 639 N.Y.S.2d 111[1996] ).Supreme Court did not err and acted within its discretion in granting plaintiff's motion ( seeClaverack Coop. Ins. Co. v. Nielsen,296 A.D.2d at 790, 745 N.Y.S.2d 604).

ORDERED that the order is...