Opinion
January 24, 1986
Appeal from the Supreme Court, Erie County, Mintz, J.
Present — Callahan, J.P., Doerr, Boomer, Pine and Schnepp, JJ.
Order unanimously affirmed, with costs to plaintiffs. Memorandum: Special Term did not abuse its discretion in refusing to grant an unconditional order of preclusion. Thus, plaintiffs motion for summary judgment was properly denied.
The cross motion for a protective order was properly denied since defendant failed to meet its burden of proving that the information sought by plaintiffs is privileged (see, Fonda v Nationwide Mut. Fire Ins. Co., 99 A.D.2d 680; Hawley v Travelers Indem. Co., 90 A.D.2d 684). Defendant's affidavit opposing discovery contains conclusory and hearsay statements and fails to state facts showing that it had made a decision to reject the claim either before it hired an attorney to investigate the fire or at any time before it notified plaintiffs of the rejection.