Mobil Oil Corp. v. State 52 A.D.2d 1033

Order unanimously reversed, with costs, and motion granted. Memorandum: On a motion to determine whether the material sought was prepared for litigation and is thus immune from discovery pursuant to CPLR 3101 (subd [d]), the burden is on the party resisting disclosure to show immunity (Koump v Smith, 25 NY2d 287, 294; Dikun v New York Cent. R.R., 58 Misc 2d 439; Weisgold v Kiamesha Concord, 51 Misc 2d 456). Claimant adequately alleged a need for the desired examination before trial for the purpose of ascertaining the existence and use of unfiled appraisals prepared by the State (Court of Claims Act, § 17, subd 2). The allegations of the State’s affiants directed solely to one possible form of utilization relative to Federal funding are conclusory at most and insufficient to defeat claimant’s motion (Matter of Town of Hempstead [Near Point Lookout Malibu], 72 Misc 2d 558, 559). We do not pass upon the ultimate discoverability or trial admissibility of any such unfiled appraisal but merely hold, in accord with the procedure here undertaken by claimant’s motion, as approved in Swartout v State of New York (44 AD2d 766), that a sufficient unrebutted showing has been made by claimant for the examination sought for the purpose of factual development concerning use by the State of unfiled appraisals (Kidansky v Schweickart, 35 AD2d 658; City of Binghamton v Arlington Hotel, 30 AD2d 585, 587; Haire v Long Is. R. R. Co., 29 AD2d 553). The order of the Court of Claims should be reversed and claimant’s motion for an examination before trial of appropriate State personnel granted. After such examination, if it be developed that unfiled appraisals were prepared and used by the State for purposes other than use in the litigation of this claim, the propriety of discovery and disclosure may then be determined by the trial court, upon application either of the claimant for such direction or the State for a protective order. (Appeal from order of Court of Claims—examination before trial.) Present—Marsh, P. J., Moule, Cardamone, Mahoney and Goldman, JJ.