Opinion
March 9, 1998
Appeal from the Supreme Court, Kings County (R. Goldberg, J.).
Ordered that the order is modified, on the law, by deleting therefrom the provision denying that branch of the motion which was to direct the defendants Seagrave Fire Apparatus, Inc., and FWD Corporation to provide complete responses to items 6 and 12 of the plaintiffs' notice for discovery and inspection, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs.
The respondents refused to provide the materials requested in items 6 and 12 of the plaintiffs' notice for discovery and inspection on the ground that the materials demanded were prepared in anticipation of litigation (see, CPLR 3101 [d] [2]). However, the conclusory assertion contained in the affirmation of the respondents' attorney to this effect was insufficient to satisfy the respondents' burden of proving that such materials are privileged ( see, Agovino v. Taco Bell 5083, 225 A.D.2d 569, 571).
The plaintiffs' remaining contentions are without merit or are academic in light of our determination.
Bracken, J. P., Copertino, Santucci, Florio and McGinity, JJ., concur.