Opinion
02-18-2015
Rebecca GEFFNER, etc., appellant, v. MERCY MEDICAL CENTER, et al., respondents, et al., defendants.
Rebecca Geffner, Little Neck, N.Y., appellant pro se. Mulholland, Minion, Duffy, Davey, McNiff & Beyrer, Williston Park, N.Y. (Ronald J. Morelli of counsel), for respondents Mercy Medical Center, Margaret Glier, Rita Regan, Roy A. Rubinstein, M.D., Eric A. Shoenfeld, M.D., and Laura Salemmo. Kaufman Borgeest & Ryan, LLP, New York, N.Y. (Jacqueline Mandell and Dennis J. Dozi of counsel), for respondents Harte Placements, Inc., doing business as Nassau–Johrens Registry Agency, Eileen Harte, individually and doing business as Nassau–Johrens Registry Agency, and Samuel Hart, individually and doing business as Nassau–Johrens Registry Agency.
Rebecca Geffner, Little Neck, N.Y., appellant pro se.
Mulholland, Minion, Duffy, Davey, McNiff & Beyrer, Williston Park, N.Y. (Ronald J. Morelli of counsel), for respondents Mercy Medical Center, Margaret Glier, Rita Regan, Roy A. Rubinstein, M.D., Eric A. Shoenfeld, M.D., and Laura Salemmo.
Kaufman Borgeest & Ryan, LLP, New York, N.Y. (Jacqueline Mandell and Dennis J. Dozi of counsel), for respondents Harte Placements, Inc., doing business as Nassau–Johrens Registry Agency, Eileen Harte, individually and doing business as Nassau–Johrens Registry Agency, and Samuel Hart, individually and doing business as Nassau–Johrens Registry Agency.
WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, JOSEPH J. MALTESE, and BETSY BARROS, JJ.
Opinion In an action, inter alia, to recover damages for medical malpractice and wrongful death, the plaintiff appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), dated February 15, 2012, which denied her motion, inter alia, to vacate so much of a prior order of the same court dated August 11, 2011, as directed her to provide the defendants with copies of an audio recording of an interview she conducted with the defendant Nicoletta Starks, and conditionally precluded her from introducing the recording for any purpose at trial if she failed to provide the defendants with copies of the recording by the next scheduled conference.
ORDERED that the order is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
Attorney work product under CPLR 3101(c), which is subject to an absolute privilege, is generally limited to materials prepared by an attorney, while acting as an attorney, which contain his or her legal analysis, conclusions, theory, or strategy (see Matter of New York City Asbestos Litig., 109 A.D.3d 7, 12, 966 N.Y.S.2d 420 ; Salzer v. Farm Family Life Ins. Co., 280 A.D.2d 844, 846, 721 N.Y.S.2d 409 ). “[T]he mere fact that a narrative witness statement is transcribed by an attorney is not sufficient to render the statement ‘work product’ ” (People v. Kozlowski, 11 N.Y.3d 223, 245, 869 N.Y.S.2d 848, 898 N.E.2d 891 ). Contrary to the plaintiff's contention, she did not meet her burden of establishing that the audio recording of an interview she conducted with the defendant Nicoletta Starks prior to the commencement of the instant action constituted attorney work product. Among other things, the plaintiff failed to show that the recording contained elements of opinion, analysis, theory, or strategy (see People v. Kozlowski, 11 N.Y.3d at 244, 869 N.Y.S.2d 848, 898 N.E.2d 891 ; Salzer v. Farm Family Life Ins. Co., 280 A.D.2d at 846, 721 N.Y.S.2d 409 ; cf. Matter of Condon v. Niagara County Dist. Attorney's Off., 115 A.D.2d 270, 495 N.Y.S.2d 863 ; but cf. Manning v. Sikorskyj, 204 A.D.2d 976, 977, 614 N.Y.S.2d 949 ).
The plaintiff argues, in the alternative, that the recording constitutes trial preparation material, which is subject to a conditional privilege under CPLR 3101(d)(2). However, the conclusory assertions set forth in her supporting affidavit are insufficient to meet her burden of establishing, with specificity, that the recording was prepared “exclusively in anticipation of litigation” (Bombard v. Amica Mut. Ins. Co., 11 A.D.3d 647, 648, 783 N.Y.S.2d 85 ; see CPLR 3101[d][2] ; Agovino v. Taco Bell 5083, 225 A.D.2d 569, 571, 639 N.Y.S.2d 111 ; Chakmakjian v. NYRAC, Inc., 154 A.D.2d 644, 645, 546 N.Y.S.2d 650 ).
Accordingly, the Supreme Court properly denied the plaintiff's motion to vacate so much of its prior order dated August 11, 2011, as directed her to provide the defendants with copies of the recording, and conditionally precluded her from introducing the recording for any purpose at trial if she failed to provide those copies by the next scheduled conference.
In light of our determination, we need not reach the parties' remaining contentions.