1591 Second Ave. LLC v Metropolitan Transp. Auth.

1591 Second Ave. LLC v Metropolitan Transp. Auth. 2019 NY Slip Op 01506 Decided on February 28, 2019 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 28, 2019
Friedman, J.P., Kapnick, Webber, Oing, Singh, JJ.
8563N 161539/15

[*1] 1591 Second Avenue LLC, et al., Plaintiffs-Respondents,

v

Metropolitan Transportation Authority, et al., Defendants-Appellants.

Smith, Mazure, Director, Wilkins, Young & Yagerman, P.C., New York (Marcia K. Raicus of counsel), for appellants.

Greenberg, Trager & Herbst, LLP, New York (Richard J. Lambert of counsel), for respondents.

Order, Supreme Court, New York County (Robert R. Reed, J.), entered on or about August 28, 2017, which denied defendants' motion to compel discovery and for sanctions, unanimously affirmed, without costs.

Supreme Court did not abuse its discretion in concluding that the requested materials were prepared in anticipation of litigation (see CPLR 3101[d][2]), or in failing to conduct an in camera inspection of the subject materials. Furthermore, given that defendants failed to contest that their experts inspected the allegedly damaged properties, they failed to show a substantial need for the report and the materials incorporated into it that was prepared by plaintiffs' experts, and that they would be unable to obtain the substantial equivalent without undue hardship (see id.; see also Gama Aviation Inc. v Sandton Capital Partners, L.P., 99 AD3d 423, 424 [1st Dept 2012]).

We have considered defendants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 28, 2019

CLERK