815 ASSOCIATES INC v. STATE (1998)

In a condemnation claim, the defendant appeals from so much of an order of the Court of Claims (Silverman, J.), entered March 19, 1997, as granted that branch of the claimant's motion which was for discovery of its A-4 Report and supporting documents, and the claimant cross-appeals from so much of the same order as denied that branch of its motion which sought an order of preclusion and sanctions.

ORDERED that the order is reversed insofar as appealed from, on the law, and that branch of the claimant's motion which was for discovery of the defendant's A-4 Report is denied;  and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from;  and it is further,

ORDERED that the defendant is awarded one bill of costs.

The claimant herein was the owner of certain real property located in the Town of Islip which was appropriated by the State in connection with its Sunrise Highway Extension Project.   The State Department of Transportation obtained an appraisal of the property upon which it based an offer of settlement.   The claimant accepted the offer as an advanced payment and commenced the instant claim for just compensation.   Thereafter, the claimant sought disclosure, inter alia, of both the appraisal and a document known as an A-4 Report which was based on the appraisal.   The State resisted disclosure on the ground that the documents in question constituted material prepared for litigation.   The Court of Claims directed the State to disclose the documents, but denied the claimant's request for sanctions under CPLR 3126.

As a general rule, documents such as the A-4 Report and the underlying appraisal enjoy the conditional immunity from disclosure which is conferred on material prepared for litigation by CPLR 3101(d) (see, First Nat. City Bank v. State of New York, 72 A.D.2d 762, 421 N.Y.S.2d 381;  Matter of Town of Oyster Bay, 54 A.D.2d 762, 387 N.Y.S.2d 881).   However, such material loses its immunity under circumstances where “the State has adopted the appraisal in question by using it in dealing with some third party in such a way that it can be said to have vouched for its authenticity” (Erie Lackawanna Ry. Co. v. State of New York, 54 A.D.2d 1089, 1090, 388 N.Y.S.2d 743;  see, First Nat. City Bank v. State of New York, supra;  Backer v. State of New York, 60 A.D.2d 996, 401 N.Y.S.2d 656).   Contrary to the claimant's contention, the A-4 Report and the underlying appraisal here were never sent or submitted to the Federal Government.   Accordingly, the documents did not lose their immunity from disclosure, and the court erred in directing the State to disclose them (see, Schad v. State of New York, 240 A.D.2d 483, 659 N.Y.S.2d 765;  Matter of Town of Oyster Bay, supra).

We are unpersuaded by the claimant's contention that we should reconsider and overrule our decision in Schad v. State of New York (supra).

The parties' remaining contentions are without merit.

MEMORANDUM BY THE COURT.