Opinion
CA 02-02234
June 13, 2003.
Appeal from an order of Supreme Court, Onondaga County (Carni, J.), entered September 12, 2002, which granted plaintiff's motion seeking to compel disclosure.
THE CAMBS LAW FIRM, LLP, CAMILLUS (MARY C. JOHN OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
ALEXANDER CATALANO, LLC, SYRACUSE (JAMES L. ALEXANDER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying that part of plaintiff's motion seeking to compel disclosure of the Lester report and as modified the order is affirmed without costs.
Memorandum:
Supreme Court properly granted that part of plaintiff's motion seeking to compel Michael P. Smyth and Federal Express Corporation (Fed Ex) (defendants) to disclose unredacted copies of two documents prepared by Fed Ex, i.e., the "View Employee Accident Report" and the "Vehicle Accident Report." "[T]here must be full disclosure of accident reports prepared in the ordinary course of business that were motivated at least in part by a business concern other than preparation for litigation" ( Calkins v. Perry, 168 A.D.2d 999; see Tenebruso v. Toys "R" Us — NYTEX, Inc., 256 A.D.2d 1236, 1237-1238; Blakesley v. State of New York, 244 A.D.2d 947; Wylie v. Consol. Rail Corp., 198 A.D.2d 884, 885; see also CPLR 3101 [g]). The exception to that rule, authorizing redaction of reports to prevent disclosure of the "mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation," ( Blakesley, 244 A.D.2d at 947) is inapplicable here. The information redacted by defendants included factual material, and any conclusions or opinions therein did not concern the litigation ( Blakesley, 244 A.D.2d at 947, quoting Wylie, 198 A.D.2d at 885).
We conclude, however, that the court erred in granting that part of plaintiff's motion seeking to compel disclosure of the "Lester report." Upon our in camera review of that report, we conclude that it was not "prepared in the regular course of business operations or practices of" Fed Ex (CPLR 3101 [g]), but rather was "prepared in anticipation of litigation or for trial" (3101 [d] [2]). Materials "produced solely in connection with the report of an accident to a liability insurance carrier or to an attorney with respect to plaintiff's claim" are not discoverable under CPLR 3101(g), but rather are conditionally immunized from discovery under CPLR 3101(d)(2) ( Recant v. Harwood, 222 A.D.2d 372, 373-374; see Hannold v. First Baptist Church, 254 A.D.2d 746, 747; Sullivan v. Smith, 198 A.D.2d 749; Vernet v. Gilbert, 90 A.D.2d 846, 846-847). We note, however, that the photographs reproduced in the Lester report are discoverable in their original form.
We therefore modify the order by denying that part of plaintiff's motion seeking to compel disclosure of the Lester report, and otherwise affirm.