                          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
