Opinion
September 9, 1993
Appeal from the Supreme Court, New York County (L. DeGrasse, J.).
The issue on this appeal is whether the plaintiff City of New York must produce investigative reports made by its former employee or whether the reports are protected by a qualified privilege as materials prepared in anticipation of litigation. We hold that the motion court erred by granting the City's motion for a protective order without first conducting an in camera inspection (see, James v Metro N. Commuter R.R., 166 A.D.2d 266, 268).
This action involves a dispute over the calculation of escalation pursuant to the terms of a lease between the City of New York as tenant and defendant Church Street Realty Associates. This action was commenced in May 1980. After Norman Davis retired from his position as Director of the Audits Bureau of the New York City Fire Department, he was retained as a consultant by the City for this litigation. Prior to his retirement, Mr. Davis had reviewed the ledgers of defendants' building. He was then hired by the Corporation Counsel as a consultant to assist in preparing this case for trial. While the City represents that it produced the reports prepared by Mr. Davis while he was a City employee, it has claimed privilege with respect to other reports prepared by Mr. Davis as materials prepared in contemplation of litigation (CPLR 3101 [c], [d]). We express no opinion as to whether the privilege is properly claimed and hold only that the motion court should inspect the documents in camera to determine the privilege claim.
Concur — Murphy, P.J., Sullivan, Milonas, Asch and Nardelli, JJ.