conditional privilege in New York

2022We affirm. "[T]o fall within the conditional privilege of CPLR 3101 (subd [d], par 2), the material sought must be prepared solely in anticipation of litigation . . . 'Mixed purpose reports are not exempt from disclosure under CPLR 3101 (subd [d], par 2)' " ( Zampatori v United Parcel Serv ., [*2] 94 AD2d 974, 975 [4th Dept 1983]; see Tenebruso v Toys 'R' Us-NYTEX , 256 AD2d 1236, 1237-1238 [4th Dept 1998]).

2022We affirm. "[T]o fall within the conditional privilege of CPLR 3101 (subd [d], par 2), the material sought must be prepared solely in anticipation of litigation . . . 'Mixed purpose reports are not exempt from disclosure under CPLR 3101 (subd [d], par 2)' " ( Zampatori v United Parcel Serv ., [*2] 94 AD2d 974, 975 [4th Dept 1983]; see Tenebruso v Toys 'R' Us-NYTEX , 256 AD2d 1236, 1237-1238 [4th Dept 1998]).

2024Common law malice can be proven by a showing of "spite or ill will" while the standard for constitutional malice is "reckless disregard for the truth" (Liberman, 80 NY2d at 434, 438 ["[W]e have recognized that the constitutional as well as the common-law standard will suffice to defeat a conditional privilege"]).

2024The Court of Appeals recognizes that either the constitutional or common-law standard suffices to “defeat a conditional privilege” (Liberman, 80 NY2d at 438 ). 157596/2022 KOFFEL, QUINCY vs.

2022We affirm. "[T]o fall within the conditional privilege of CPLR 3101 (subd [d], par 2), the material sought must be prepared solely in anticipation of litigation . . . 'Mixed purpose reports are not exempt from disclosure under CPLR 3101 (subd [d], par 2)' " ( Zampatori v United Parcel Serv ., [*2] 94 AD2d 974, 975 [4th Dept 1983]; see Tenebruso v Toys 'R' Us-NYTEX , 256 AD2d 1236, 1237-1238 [4th Dept 1998]).

2022We affirm. "[T]o fall within the conditional privilege of CPLR 3101 (subd [d], par 2), the material sought must be prepared solely in anticipation of litigation . . . 'Mixed purpose reports are not exempt from disclosure under CPLR 3101 (subd [d], par 2)' " ( Zampatori v United Parcel Serv ., [*2] 94 AD2d 974, 975 [4th Dept 1983]; see Tenebruso v Toys 'R' Us-NYTEX , 256 AD2d 1236, 1237-1238 [4th Dept 1998]).

2024Footnote 2: We note that, even under the more lenient "gross irresponsibility" standard, Verdi's evidence is still insufficient ( see Karaduman , 51 NY2d at 542 ["Absent some showing that (the defendant) personally had reason to doubt the truthfulness of the statements in the articles, we find it difficult to understand how he could be held 'grossly irresponsible' "]; Shuman v New York Mag. , 211 AD3d 558, 559 [1st Dept 2022] ["Plaintiffs' arguments as to defendants' gross irresponsibility are largely based on conclusory assertions as to what defendants knew or should have known pre-publicatio

2024Footnote 2: We note that, even under the more lenient "gross irresponsibility" standard, Verdi's evidence is still insufficient ( see Karaduman , 51 NY2d at 542 ["Absent some showing that (the defendant) personally had reason to doubt the truthfulness of the statements in the articles, we find it difficult to understand how he could be held 'grossly irresponsible' "]; Shuman v New York Mag. , 211 AD3d 558, 559 [1st Dept 2022] ["Plaintiffs' arguments as to defendants' gross irresponsibility are largely based on conclusory assertions as to what defendants knew or should have known pre-publicatio

2024Footnote 2: We note that, even under the more lenient "gross irresponsibility" standard, Verdi's evidence is still insufficient ( see Karaduman , 51 NY2d at 542 ["Absent some showing that (the defendant) personally had reason to doubt the truthfulness of the statements in the articles, we find it difficult to understand how he could be held 'grossly irresponsible' "]; Shuman v New York Mag. , 211 AD3d 558, 559 [1st Dept 2022] ["Plaintiffs' arguments as to defendants' gross irresponsibility are largely based on conclusory assertions as to what defendants knew or should have known pre-publicatio

2024Footnote 2: We note that, even under the more lenient "gross irresponsibility" standard, Verdi's evidence is still insufficient ( see Karaduman , 51 NY2d at 542 ["Absent some showing that (the defendant) personally had reason to doubt the truthfulness of the statements in the articles, we find it difficult to understand how he could be held 'grossly irresponsible' "]; Shuman v New York Mag. , 211 AD3d 558, 559 [1st Dept 2022] ["Plaintiffs' arguments as to defendants' gross irresponsibility are largely based on conclusory assertions as to what defendants knew or should have known pre-publicatio

2017Accident reports prepared with a mixed purpose, however, are not exempt from disclosure (see Hewitt v Palmer Veterinary Clinic, PC, 145 AD3d 1415, 1415 [2016]; Claverack Coop.

2017Accident reports prepared with a mixed purpose, however, are not exempt from disclosure (see Hewitt v Palmer Veterinary Clinic, PC, 145 AD3d 1415, 1415 [2016]; Claverack Coop.

2012Co., 94 AD2d 617 [1983]; compare Maisch v Millard Fillmore Hosps., 278 AD2d 838 [2000]).

2012Co., 94 AD2d 617 [1983]; compare Maisch v Millard Fillmore Hosps., 278 AD2d 838 [2000]).

2018Additionally, pursuant to CPLR 3101(d)(2), material that is prepared in anticipation of trial is subject to a conditional privilege and, thus, is subject to disclosure only by a party's showing that he or she is in substantial need of the material and is unable to obtain the substantial equivalent of the material by other means without undue hardship ( see Kin Hwa Ku v City of New York , 106 AD3d 698, 699 ; Straus v Ambinder , 61 AD3d 672, 673 ; Davila v Environmental Prods. & Servs ., 270 AD2d 224, 224 ).

2018However, the court erred in finding that Ast met his burden of demonstrating that he had a "substantial need" for the materials in the carrier's file, and that he could not obtain their "substantial equivalent" by other means "without undue hardship" (CPLR 3101[d]; see Straus v Ambinder , 61 AD3d at 673 ; Davila v Environmental Prods. & Servs ., 270 AD2d at 224 ; Recant v Harwood , 222 AD2d 372, 373 ).

2018Additionally, pursuant to CPLR 3101(d)(2), material that is prepared in anticipation of trial is subject to a conditional privilege and, thus, is subject to disclosure only by a party's showing that he or she is in substantial need of the material and is unable to obtain the substantial equivalent of the material by other means without undue hardship ( see Kin Hwa Ku v City of New York , 106 AD3d 698, 699 ; Straus v Ambinder , 61 AD3d 672, 673 ; Davila v Environmental Prods. & Servs ., 270 AD2d 224, 224 ).

2018As for the insurance carrier's file, the court correctly concluded that this file is protected by a conditional immunity, as it contained material prepared for litigation ( see Curci v Foley , 149 AD3d 1388, 1389 ; Lamberson v Village of Allegheny , 158 AD2d 943, 943 ; Sofio v Hughes , 148 AD2d 439, 440 ; see also Kin Hwa Ku v City of New York , 106 AD3d at 699 ; Davila v Environmental Prods. & Servs ., 270 AD2d at 224 ).

2016No. 2, Queensbury, 38 AD2d 770, 771 [1972]; see CPLR 3101 [d] [2]; Litvinov v Hodson, 74 AD3d 1884, 1886 [2010]).

2016No. 2, Queensbury, 38 AD2d 770, 771 [1972]; see CPLR 3101 [d] [2]; Litvinov v Hodson, 74 AD3d 1884, 1886 [2010]).

2016Hence, should Polanco testify at the new trial, any factual information that he provided to ECB&A when he was interviewed by one of its attorneys is properly discoverable, and potentially usable at trial, under CPLR 3101 (d) (2) (cf. People v Kozlowski, 11 NY3d 223, 245 [2008] [“the mere fact that a narrative witness statement is transcribed by an attorney is not sufficient to render the statement ‘work product’ ” subject to absolute privilege under CPLR 3101 (c), rather than trial preparation material subject to a conditional privilege under CPLR 3101 (d) (2)], cert denied 556 US 1282 [2009])

2016The trial court properly admitted into evidence a video recording and transcript of a complainant’s testimony at a conditional hearing (see CPL 670.10 [1]; 670.20 [1]; People v Arroyo, 54 NY2d 567, 577 [1982]).

2016The opportunity for cross-examination afforded to defense counsel at the conditional examination was sufficient to test the reliability of the witness and to insure the fairness of the proceeding (see People v Arroyo, 54 NY2d at 574 ).

2012Little League, Inc., 57 AD3d 503, 504 [2008]; Golden v Stiso, 279 AD2d 607, 608 [2001]; Suozzi v Parente, 202 AD2d 94, 101 [1994]; ATN Marts v Ireland, 195 AD2d 959 [1993]), and a conditional privilege arising from the plaintiffs status as a public figure (see Shulman v Hunderfund, 12 NY3d 143, 147 [2009]; Silsdorf v Levine, 59 NY2d 8, 16-17 [1983], cert denied 464 US 831 [1983]; Cancer Action NY v St.