Opinion
January 18, 1968
Max Heit for claimant.
Howard E. Levitt, Town Attorney, for Town of Hempstead.
This is a proceeding in eminent domain instituted by the Town of Hempstead to acquire real property for purposes of urban renewal at Inwood, Town of Hempstead, Nassau County, New York.
The claimant in Damage Parcel 6-1 has served a notice and demand for an exchange of appraisal reports covering the above-described parcel with reference to the condemnation matter pending on the above-entitled action.
The Town of Hempstead now seeks an order pursuant to CPLR 3122 vacating the notice to exchange appraisal reports, upon the ground that the same is violative of rule I of part XI of the Rules of the Appellate Division, Second Department, entitled "Proceedings for Condemnation, Appropriation and Review of Tax Assessments."
The claimant bases his right to an exchange of appraisals upon CPLR, article 31, specifically section 3101.
CPLR 3101 provides a conditional privilege concerning material prepared for litigation: "§ 3101. * * * (d) Material prepared for litigation. The following shall not be obtainable unless the court finds that the material can no longer be duplicated because of a change in conditions and that withholding it will result in injustice or undue hardship: 1. any opinion of an expert prepared for litigation; and 2. any writing or anything created by or for a party or his agent in preparation for litigation." (See Matter of Town of Hempstead [ East Meadow], 50 Misc.2d 101.)
CPLR 3140 (added by L. 1967, ch. 640, eff. Sept. 1, 1967) provides as follows: "Disclosure of appraisals in proceedings for condemnation, appropriation or review of tax assessments. Notwithstanding the provisions of subdivisions (c) and (d) of section 3101, the appellate division of each judicial department shall adopt rules governing the exchange of appraisal reports intended for use at the trial in proceedings for condemnation, appropriation or review of tax assessments."
Pursuant to the above section, the Appellate Division, Supreme Court, Second Department, has promulgated the following rule: "Part Eleven. Proceedings for Condemnation, Appropriation and Review of Tax Assessments. Rule I — Filing and exchange of appraisal reports. (a) In all proceedings for condemnation, appropriation and review of tax assessments, where the determination of the value of real or personal property is in issue, the attorneys for the respective parties shall file with the clerk of the trial court, not later than ten days before the date set for trial, any appraisal report intended to be used at the trial, together with a separate copy of such report for each adverse party to the claim."
By reason of the explicit language of CPLR 3140 and the rules adopted by the Appellate Division, an appraisal report in condemnation proceedings is not within the purview of any pretrial or discovery proceedings.
The motion to vacate the demand for exchange of appraisals is granted. No motion costs will be allowed.