State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 29, 2016 523089 

________________________________

MARSHA HEWITT,

Appellant,

v

MEMORANDUM AND ORDER

PALMER VETERINARY CLINIC, PC,

Respondent,

et al.,

Defendant.

________________________________

Calendar Date: November 15, 2016

Before: Garry, J.P., Egan Jr., Devine, Clark and Mulvey, JJ.

__________

Schneider & Palcsik, Plattsburgh (Mark Schneider of

counsel), for appellant.

Burke, Scolamiero, Mortati & Hurd, LLP, Albany (Adam Hover

of counsel), for respondent. 

__________

Devine, J.

Appeal from an order of the Supreme Court (Ellis, J.),

entered April 25, 2016 in Clinton County, which denied

plaintiff's motion to compel certain discovery.

On April 16, 2014, plaintiff took her cat to be examined at

a facility operated by defendant Palmer Veterinary Clinic, PC

(hereinafter the clinic). She was allegedly attacked and injured

by a dog, owned by defendant Ann Hemingway, in the waiting area. 

On April 25, 2014, counsel for plaintiff wrote to the clinic to

notify it that he had been retained and urge it to notify its

liability insurance carrier of plaintiff's "claim" as soon as

possible. After minimal discussions between counsel for
-2- 523089 

plaintiff and representatives of the carrier, plaintiff commenced

this negligence and premises liability action against defendants

in August 2014. The summons and complaint were served upon the

clinic in September 2014.

Plaintiff demanded that the clinic produce certain items in

the course of discovery, including documents from the file of the

insurance adjuster in the clinic's possession, custody or control

that were prepared before service of the complaint. The clinic

refused to turn over those items upon the ground that they were

"prepared directly in anticipation of litigation," and plaintiff

moved to compel a response. Supreme Court denied the motion, and

plaintiff appeals.

Inasmuch as "[t]he purpose of liability insurance is the

defense and settlement of claims . . . once an accident has

arisen," documents contained in the insurance adjuster's file are

generally protected by "a conditional immunity . . . as material

prepared for litigation" (Ainsworth v Union Free School Dist. No.

2, Queensbury, 38 AD2d 770, 771 [1972]; see CPLR 3101 [d] [2];

Litvinov v Hodson, 74 AD3d 1884, 1886 [2010]). Accident reports

that are prepared with "a mixed purpose and result at least in

part from the internal operations of the defendant's business"

are not, however, exempt from disclosure (Claverack Coop. Ins.

Co. v Nielsen, 296 AD2d 789, 789 [2002]; see CPLR 3101 [g];

Recant v Harwood, 222 AD2d 372, 373 [1995]; Pataki v Kiseda, 80

AD2d 100, 101-102 [1981], lvs dismissed 54 NY2d 606, 831 [1981]). 

It is therefore incumbent upon "the party resisting disclosure

to[, in the first instance,] 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 at 789 [internal citation omitted];

see Jacaruso v Keyspan Energy Corp., 109 AD3d 585, 586 [2013];

Madison Mut. Ins. Co. v Expert Chimney Servs., Inc., 103 AD3d

995, 996 [2013]). 

The clinic here neither disclosed what documents were

encompassed by the discovery demand nor identified the specific

documents that it claimed were prepared solely for litigation

purposes. The clinic also made inadequate efforts to show that

these unidentified documents were conditionally immune from
-3- 523089 

disclosure, submitting the conclusory affidavits of two

individuals who baldly asserted that the undisclosed portions of

the carrier's file beyond the April 25, 2014 communication from

plaintiff's counsel had been created for litigation purposes

(see Claverack Coop. Ins. Co. v Nielsen, 296 AD2d at 790; Agovino

v Taco Bell 5083, 225 AD2d 569, 571 [1996]). As a result, the

clinic failed to meet its initial burden of demonstrating that

conditional immunity attached to any of the demanded documents

(see Wheeler v Frank, 101 AD3d 1449, 1449 [2012]; Pinkans v

Hulett, 156 AD2d 877, 878 [1989]; McKie v Taylor, 146 AD2d 921,

922 [1989]; Sack v North Am. Sys., 115 AD2d 721, 721 [1985]). 

While the clinic failed to meet its initial burden,

compelling the disclosure of all demanded documents at this point

is inappropriate (cf. Sack v North Am. Sys., 115 AD2d at 721). 

It is unclear what documents are encompassed by the discovery

demand, many of which may well have been solely prepared for

litigation purposes since they were created after the carrier

became aware of plaintiff's claim and began communicating with

her counsel. Moreover, the parties were in agreement that

Supreme Court should review the documents in camera if any

question existed as to the applicability of conditional immunity. 

The most prudent course under these circumstances – and the one

we follow – is to remit so that Supreme Court may review the

documents in camera to determine whether they were exclusively

prepared for litigation purposes and, if so, whether they should

nevertheless be disclosed (see James v Metro N. Commuter R.R.,

166 AD2d 266, 267-268 [1990]; Sovereign Indus. Corp. v Raleigh

Warehouse, 74 AD2d 746, 747 [1980]).

Garry, J.P., Egan Jr., Clark and Mulvey, JJ., concur.
-4- 523089 

ORDERED that the order is reversed, on the law, with costs,

and matter remitted to the Supreme Court for further proceedings

not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger

Clerk of the Court