Opinion
November 3, 1986
Appeal from the Supreme Court, Nassau County (Christ, J.).
Ordered that the order dated May 28, 1985, is affirmed; and it is further,
Ordered that the appeal from the order dated September 11, 1985, insofar as it denied LILCO's motion for reargument, is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated September 11, 1985, insofar as it denied LILCO's motion for renewal of the prior order, is affirmed; and it is further,
Ordered that the respondents, appearing separately and filing separate briefs, are awarded one bill of costs.
We find, as did Special Term, that the information encompassed in items Nos. 11 and 12 of the plaintiffs' notice for discovery and inspection is subject to disclosure pursuant to CPLR 3101 (g). Although LILCO maintains that the accident reports and other material specified in the plaintiffs' demand are not subject to disclosure because they were prepared by its claims department exclusively in anticipation of litigation (see, CPLR 3101 [d]), this court, in the seminal case of Pataki v Kiseda ( 80 A.D.2d 100, 104-105, lv dismissed 54 N.Y.2d 831), recognized that "any written accident report, prepared in the regular course of business operations or practices, not for use in a criminal investigation or prosecution, is subject to full disclosure, notwithstanding that it was prepared exclusively for use in litigation" (emphasis added; see also, Matos v Akram Jamal Meat Corp., 99 A.D.2d 527; Chemical Bank v National Union Fire Ins. Co., 70 A.D.2d 837).
The burden of demonstrating that particular items are exempt from discovery falls upon the party asserting the exemption (see, Koump v Smith, 25 N.Y.2d 287, 294; Graf v Aldrich, 94 A.D.2d 823; Zimmerman v Nassau Hosp., 76 A.D.2d 921). LILCO has simply failed to sustain its burden of demonstrating that the reports prepared by employees of its claims department immediately following the accident, and long before any lawsuit was commenced, constitute material which remains immune from disclosure pursuant to CPLR 3101 (d). Mangano, J.P., Bracken, Brown and Eiber, JJ., concur.