The Court marked the following e-filed documents associated with motion sequence number 005 fully submitted on September 24, 2024 E-Filed Document#: Defendant’s Notice of Motion to Compel dated July 29, 024; Affirmation in Support dated July 29, 2024; Memorandum of Law dated July 29, 2024 and Exhibits 26-31, 42 Plaintiff’s Affirmation in Opposition dated August 9, 2024, Memorandum of Law dated September 18, 2024 and Exhibits 36-37, 45 Defendant’s Affirmation in Reply dated August 13, 2024 And Exhibits 39 Defendant’s Supplemental Affirmation in Support dated September 18, 2024 43 DECISION AND ORDER Upon the forgoing papers, defendant’s motion for to compel is denied. FACTS This is a personal injury action that occurred on October 24, 2019 at and/or on the handicap ramp/walkway/curb of the premises located at Staten Island University Hospital located at 475 Seaview Avenue, Staten Island, New York. It is alleged that as a result of a defective and dangerous condition, to wit, a “raised”, “broken”, “cracked”, “unlevel”, “irregular” and “unlevel” handicap ramp/walkway/curb, plaintiff was caused to fall out of his wheelchair and sustain serious is injuries. At the time of the accident nonparty eyewitness Valentina D’Onofrio was pushing the wheelchair in which plaintiff was seated. PROCEDURAL HISTORY Plaintiff commenced this action with the filing of a summons and complaint on February 27, 2022. Defendants filed separate Answers on April 11, 2022, by same counsel. Various discovery was exchanged by plaintiff’s counsel. Plaintiff, who is blind, was deposed on August 18, 2023. A deposition of a nonparty eyewitness, Valentina D’Onofrio, was conducted on June 4, 2024 pursuant to subpoena. No defendant has been deposed to date. Defendant now seeks to compel the nonparty eyewitness, Valentina D’Onofrio, to produce her written statement which the witness composed on the date of the accident and/or the day after plaintiff’s accident. Defendants submit that said written statement is neither attorney work product as it was not prepared by plaintiff’s attorney, nor material prepared in anticipation of litigation as the written statement was prepared on her own volition. Further, while counsel for defendants concedes that it had the opportunity to depose the nonparty witness, counsel contends that such testimony elicited by the nonparty witness lacked specificity as the witness testified she has memory issues and unable to recall details and that her written statement would better explain the happening and manner in which the accident occurred. It is defendant’s position that the deposition of the nonparty witness “unambiguously shows…the written statement in all probability contains information differing from her testimony”. Defendants counsel annexes as Exhibit “B” the transcript of the nonparty eyewitness Valentina D’Onofrio. Plaintiff opposes defendants’ instant application contending that the written statement of the nonparty eyewitness is material prepared in anticipation of litigation pursuant to CPLR 3201(d)(2) To that end, plaintiff relies upon the deposition testimony of the nonparty eyewitness, taken pursuant to subpoena, wherein Ms. D’Onofrio, testified that she wrote a statement the day of or day after the accident at the request of plaintiff and his mother as “they felt they had a case they wanted to pursue because he was injured”. She testified the written statement was given to the plaintiff and/or his mother. Further, counsel contends that at the deposition Ms. D’Onofrio identified a photograph she took depicting the alleged defect; marked the area of the location of the accident from that photograph at the deposition; identified the raised portion of the handicap ramp in said photograph and authenticated a video she took of the location of the accident as well as the handicap ramp which also contained an audio of her voice. The eyewitness testified all of which were taken at the time she wrote her statement and all of which were given to plaintiff and/or his mother. Based upon the testimony of the nonparty eyewitness, plaintiff asserts that the written statement of Ms. D’Onofrio is material prepared in anticipation of litigation and the defendants have failed to demonstrate 1) a substantial need for said written statement and 2) failed to demonstrate that it is unable, without undue hardship, to obtain the substantial equivalent of the written statement by other means. LEGAL ANALYSIS Generally, there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action. (CPLR 3101 (a)). However, there are limitations to disclosure. Privileged matters and attorney work product are given absolute immunity from discovery pursuant to (CPLR 3101(b) and (c). There is also a conditional or qualified immunity from disclosure for material prepared in anticipation of litigation pursuant to CPLR 3101(d)(2). In the present matter, it is undisputed that the written statement of the nonparty eyewitness is not attorney work product which would be immune from discovery. At issue here is whether the written statement of the nonparty witness is material prepared in anticipation of litigation. CPLR 3101(d)(2) states: (2). Materials. Subject to the provisions of paragraph one of this subdivision, materials otherwise discoverable under subdivision (a) of this section and prepared in anticipation of litigation or for trial by or for another party, or by or for that other party’s representative (including an attorney, consultant, surety, indemnitor, insurer or agent), may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation. It is well established that a written statement by an eyewitness is “truly material prepared for litigation” and given a qualified immunity from disclosure. (Rojas v. New York City Transit Auth., 276, AD2d 684 quoting Zellman v. Metropolitan Transp. Auth., 40 AD2d 248 [2d Dept., 1972]; DeGourney v. Mulzac 297 AD2d 680 [2d Dept., 2001 A written statement by an eyewitness may only be disclosed upon the moving party demonstrating it has a substantial need for the statement (or material) and is unable to obtain its substantial equivalent without undue hardship. (CPLR 3101(d)(2); Liqoure v. City of New York 28 AD3d 1027 [2d Dept., 2015]). It is also well established that the party opposing the discovery has the burden pf proof asserting that the material, or as in the present mater, the eyewitness written statement was exclusively prepared in anticipation of litigation. (Liqure, supra.). Conclusory statements by an attorney, without more, are insufficient to meet this burden. (Liquore, surpra.; People v. New York City House. Auth., 169 AD3d 1071 [2d Dept., 2019]). Here, based upon the evidence submitted by defendants, the deposition transcript of the nonparty eyewitness, plaintiff meets his burden of proof establishing that same was and is material prepared in anticipation of litigation and as such, is conditionally immune from discovery. Initially it must be noted that the material does not have to be prepared by an attorney to invoke the provisions of CPLR 3101(d)(2). Rather, it is material prepared in anticipation of litigation…”by or for another party….”. A review of the entirety of said transcript reveals that Ms. D’Onofrio testified that she specifically wrote a written statement (as well as taking photographs and a video of the location of the accident) at the request of plaintiff and his mother the day of or the day after the accident. Further, when questioned by defendants’ counsel “did they tell her why they wanted you to do that?”, Ms. D’Onofrio testified “the felt they had a case they wanted to pursue a case because he was injured and that was it….”. The sworn testimony of said witness demonstrates with specificity, to wit, her written statement, was prepared by her on behalf of (“for”) the plaintiff solely in anticipation of litigation. (Kin Hwa Ku v. City of New York 106 AD3d 698 [2d Dept., 2013]). Unlike Liqoure, supra and People, supra., plaintiff does not rely upon conclusory statements of its counsel, but rather sworn testimony of the nonparty eyewitness to establish its burden of proof in asserting that the written statement of Ms. D’Onofrio is material prepared in anticipation of litigation affording conditional immunity from disclosure, Having met his evidentiary burden, the defendants may obtain such nonparty eyewitness written statement only upon establishing they have 1) a substantial need for same in preparation of the case and 2) are unable to obtain the material by other means without undue hardship pursuant to CPLR 3101(d)(2). Here, defendants fail to establish these requirements to compel disclosure. While counsel utilizes selected portions of Ms. D’Onofrio’s testimony, a review of her entire testimony as noted above, reveals that she identified a photograph she took depicting the alleged defective condition and marked such area of the location of the accident at her deposition. Notably, Ms. D’Onofrio was shown a video during her deposition wherein she authenticated her voice as being on the video and identified the video as being the video she took the day or the day after the accident, The witness further testified that the video depicts the location of the accident; depicts the uneven, unlevel portion of the handicap ramp by placement of her sneaker/foot at the location of the accident for reference as well as the lighting conditions or lack thereof at the location of the accident. Ms. D’Onofrio was questioned extensively about what was depicted on the video she took, and what was depicted in the photograph(s) by both counsels.1 Additionally, prior to seeing a photograph(s) and her video, she gave detailed testimony as to the happening and manner pf plaintiff’s accident. Her testimony, the photograph(s) and her video are consistent with the happening and manner pf plaintiff’s accident Inasmuch as the nonparty eyewitness already has been deposed, defendants fail to establish they have a substantial need for her written statement and that they are unable, without undue hardship to obtain its substantial equivalent. Contrary to the conclusory statement of defendant’s counsel, defendants fail to establish any plausibility that Ms. D’Onofrio’s written statement contains any different material and relevant information and/or inconsistent material and relevant information than that which has been provided on the video or marked on the photograph depicting the manner and happening of plaintiff’s accident. Accordingly, it is hereby ORDERED that defendant’s motion to compel is denied in its entirety. The foregoing constitutes the decision and order of this court. Dated: November 25, 2024
