BLAKESLEY v. STATE 89609 (1997)

Supreme Court, Appellate Division, Fourth Department, New York.

Robin A. BLAKESLEY and Eric Blakesley, Respondents, v. STATE of New York, Appellant. (Claim No. 89609.)

Decided: November 19, 1997

Before PINE, J.P., and LAWTON, HAYES, WISNER and FALLON, JJ.

Gottesman, Wolgel, Secunda, Malamy & Flynn, P.C. by Christopher Coffey, Eric Levine, New York City, for Defendant-Appellant. Moran and Kufta, P.C. by Gregory Phillips, Rochester, for Claimants-Respondents.

The Court of Claims properly granted claimant's cross motion to compel defendant to disclose an accident report prepared by a contract accident review group convened by the Assistant Commissioner for Legal Affairs of the New York State Department of Transportation (DOT). The accident report was prepared in the regular course of business of the DOT (see, CPLR 3101[g] ), and defendant failed to establish that the report was not “motivated at least in part by a business concern other than preparation for litigation”(Calkins v. Perry, 168 A.D.2d 999, 564 N.Y.S.2d 943). We modify the order, however, by directing the Court of Claims to conduct an in camera inspection of the accident report and to redact therefrom material disclosing the “mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation” (CPLR 3101[d] [2]; see, Wylie v. Consolidated Rail Corp., 198 A.D.2d 884, 885, 605 N.Y.S.2d 700).

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM:

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