DeGOURNEY v. MULZAC

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

Jacqueline DeGOURNEY, Respondent, v. Noreen MULZAC, Appellant, et al., Defendant.

Decided: October 29, 2001

FRED T. SANTUCCI, J.P., SONDRA MILLER, DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN and THOMAS A. ADAMS, JJ. DeCicco, Gibbons & McNamara, P.C., New York, N.Y. (Philip A. DeCicco and Andrew P. Zotos of counsel), for appellant. Rubenstein & Rynecki, Brooklyn, N.Y. (Kliopatra Vrontos of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant Noreen Mulzac appeals from an order of the Supreme Court, Queens County (Thomas, J.), dated August 11, 2000, which denied her motion, inter alia, to compel the plaintiff to comply with her notice of discovery and inspection dated May 1, 2000.

ORDERED that the order is affirmed, with costs.

 The Supreme Court correctly denied that branch of the appellant's motion which sought discovery of the piece of paper upon which the license plate number of the alleged offending vehicle had been written by an eyewitness to the pedestrian-automobile collision, as the plaintiff established that the piece of paper was no longer in her possession (see, Romeo v. City of New York, 261 A.D.2d 379, 689 N.Y.S.2d 517;  Castillo v. Schein, 259 A.D.2d 651, 686 N.Y.S.2d 818;  Wilensky v. JRB Mktg. & Opinion Research, 161 A.D.2d 761, 556 N.Y.S.2d 356;  Rosado v. Mercedes-Benz of N. Am., 103 A.D.2d 395, 480 N.Y.S.2d 124).

 The Supreme Court providently exercised its discretion in denying that branch of the appellant's motion which was to compel disclosure of a written statement by a nonparty eyewitness answering questions posed by the plaintiff's attorney.   This statement is immune from disclosure pursuant to CPLR 3101(d)(2) since it constitutes material prepared for litigation (see, Yasnogordsky v. City of New York, 281 A.D.2d 541, 722 N.Y.S.2d 248;  Kane v. Her-Pet Refrig., 181 A.D.2d 257, 262, 587 N.Y.S.2d 339;  Zellman v. Metro. Transp. Auth., 40 A.D.2d 248, 339 N.Y.S.2d 255), and the appellant failed to demonstrate that she had a substantial need of it and was unable to obtain its substantial equivalent without undue hardship (see, CPLR 3101[d] [2] ).   Indeed, the witness already had been deposed, and the appellant failed to demonstrate any likelihood that the letter contains any information differing from that which had been previously disclosed (see, Saieh v. Demetro, 201 A.D.2d 477, 607 N.Y.S.2d 405).

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