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Rose Baratta v. John Pallotta, Doing Business as Solvay Automotive Shop, Defendant Rose Baratta v. Mobil Oil Corporation, and Third-Party John Pallotta, Third-Party Defendant-Respondent
— Order unanimously reversed, with costs, and motion denied without prejudice to renew within 20 days from the date of service of the order herein. Memorandum: Third-party defendant’s motion for a protective order denying discovery of the results of certain tests was improperly granted (CPLR 3103).
A party opposing discovery bears the burden of proving that the material sought was prepared for litigation and, therefore, was immune from disclosure pursuant to CPLR 3101 (subd [d]) (Koump v Smith, 25 NY2d 287, 294; Mobil Oil Corp. v State of New York, 52 AD2d 1033). The attorney’s conclusory allegations were insufficient to meet this burden (Hunt v Joseph, 67 AD2d 697).
(Appeal from order of Onondaga Supreme Court — examination before trial — protective order.) Present — Dillon, P. J., Callahan, Doerr, Moule and Schnepp, JJ.