Wheeler v Frank

Wheeler v Frank 2012 NY Slip Op 08863 Decided on December 20, 2012 Appellate Division, Third 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 and Entered: December 20, 2012
514929

[*1]VALERIE A. WHEELER, Respondent,

v

BRIAN FRANK et al., Appellants.

Calendar Date: November 20, 2012
Before: Peters, P.J., Rose, Lahtinen, Malone Jr. and Garry, JJ.


Gozigian, Washburn & Clinton, Cooperstown (E.W.
Garo Gozigian of counsel), for appellants.
Thomas R. Monks, Rochester, for respondent.

MEMORANDUM AND ORDER


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, 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 [*2]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.