Court of Claims

Decided on October 12, 2025

Claim No. 138382

Zainab A. Chaudhry, J.

[*1]

This negligence and wrongful death action arises from a June 19, 2022 incident where a roadside tree fell onto the Palisades Interstate Parkway and crushed claimants' vehicle, killing decedent Anthony Apostolico and seriously injuring his children, claimants Vincent and Elizabeth Apostolico. According to claimants, the accident occurred when a portion of one tree broke off and struck a second tree, which in turn fell onto the Apostolico vehicle. Claimants allege that both trees were susceptible to failure as a result of decay, and that defendants negligently failed to remove them before the date of the accident.

After the parties reached an impasse regarding certain discovery disputes, the Court authorized the instant motions. Claimants move pursuant to CPLR 3124 for an order compelling (1) the production of a report written by Elena Morgan—an arborist employed by the New York State Department of Transportation (DOT)—which summarizes an inspection of the subject trees that she conducted shortly after the accident occurred; (2) Morgan to appear for a deposition; and (3) another DOT employee, Jeffrey Strike, to appear for a deposition. Defendants oppose the motion and cross-move pursuant to CPLR 3103 for a protective order to prevent the disclosure of all items sought by claimants. In addition, defendants submitted a copy of Morgan's [*2]report^FN1 for the Court to inspect in camera, together with a series of email communications between DOT staff pertaining to Morgan's inspection and report.

Defendants object to the disclosure of Morgan's report on several grounds. First, they contend that the report is privileged under CPLR 3101 (d) (2) because it was prepared in anticipation of litigation. Next, they argue that Morgan's report may not be disclosed because it contains evidence of post-accident remedial measures. Defendants further assert that Morgan's report is irrelevant because her inspection occurred after the accident and is thus not probative of the core issue of whether defendant had notice of any dangerous condition before the accident occurred. Defendants argue in the alternative that if the Court orders the report to be disclosed, any opinions or conclusions stated by Morgan should be redacted. Defendants have also provided a copy of the report with proposed redactions for the Court to review in camera.

CPLR 3101 (a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof[.]" This standard is "'interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity'" (Forman v Henkin, 30 NY3d 656, 661 [2018], quoting Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see also U.S. Ice Cream Corp. v Carvel Corp., 190 AD2d 788, 788 [2d Dept 1993]). However, under CPLR 3101 (d) (2), materials prepared "in anticipation of litigation" are exempt from disclosure unless the party seeking the materials shows a "substantial need" for them and "is unable without undue hardship to obtain the substantial equivalent of the materials by other means." And, "[i]n ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation" (CPLR 3101 [d] [2]). The conditional privilege granted under CPLR 3101 (d) (2) applies only if the materials sought were prepared solely in anticipation of litigation; multi-purpose reports motivated only in part by the potential for litigation are not protected (see Bombard v Amica Mut. Ins. Co., 11 AD3d 647, 648 [2d Dept 2004]; Crazytown Furniture v Brooklyn Union Gas Co., 145 AD2d 402, 403 [2d Dept 1988]). "'The burden of proving that a statement is privileged as material prepared solely in anticipation of litigation or trial is on the party opposing discovery'" (Coads v Nassau County, 231 AD3d 902, 905 [2d Dept 2024], quoting Ligoure v City of New York, 128 AD3d 1027, 1028 [2d Dept 2015]). "Such burden is met 'by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation'" (id., quoting Ligoure, 128 AD3d at 1028).

Defendants failed to meet their burden to demonstrate that Morgan's report is privileged under CPLR 3101 (d) (2) because they did not show, with the requisite specificity, that the report was prepared exclusively for litigation. Significantly, here, the report was based upon site visits conducted by Morgan mere days after the accident and several months before a notice of intention to file a claim was served in this matter (see Mananghaya v Bronx-Lebanon Hosp. Ctr., [*3]147 AD3d 487, 489 [1st Dept 2017]; McKie v Taylor, 146 AD2d 921, 922 [3d Dept 1989]; cf. McCoy v State of New York, 52 AD3d 1212, 1213 [4th Dept 2008]). Defendants argue that "[DOT's] internal legal counsel asked that [DOT] send an arborist to investigate what transpired and to obtain photographs and provide a report of the findings" (Masry Affirm, ¶ 4), but the record does not support the contention that the report and inspection were first ordered by counsel. Indeed, the deposition testimony and the emails submitted for the Court's review in camera show that both the inspection and the report were initially requested by DOT Regional Director Lance MacMillan "in furtherance of the New York State DOT investigation into [the] accident" which was led by DOT Regional Transportation Maintenance Engineer Glenn Boucher (Papain Affirm in Supp of Mot, Exh F [Boucher EBT], at 31; see id. at 32, 37; see also Papain Affirm in Supp of Mot, Exh G [MacMillan EBT], at 106-110). MacMillan did not consult with DOT counsel before requesting the inspection, and he testified at his deposition that counsel "asked for [the report] two days after we had already got it done" (MacMillan EBT, at 119). He then clarified he did not recall the exact timeline, but he noted it was "certainly later that week [of the accident that DOT counsel] asked for more details . . . and we had [Morgan's] summary to support that information request" (id. at 119-120). Although a document need not necessarily have been prepared at counsel's direction in order to be privileged under CPLR 3101 (d) (2), the fact that Morgan's inspection and report were prepared at the direction of someone other than counsel is a factor to be considered in determining whether defendants have met their burden (see Crazytown Furniture, 145 AD2d at 403).

As further relevant to the inquiry, Boucher testified that he needed the information from Morgan's inspection to carry out his duties as a regional maintenance engineer (see Boucher EBT, at 258-259). The record shows that Boucher, acting under MacMillan's direction, told Morgan that there was an accident involving two rotted trees and that Boucher "needed [Morgan] to take a look" (Boucher EBT, at 33). Boucher testified that Morgan's report was originally provided to him "in an email fashion" (id. at 35), which Boucher agreed that he needed "in order to take the actions [he] took following the accident" (id. at 257). When asked why MacMillan requested Morgan's report, Boucher answered it was "[b]ecause there was a fatal accident" and did not specifically mention the prospect of litigation (id. at 259). Boucher gave conflicting testimony, however, as to whether the report was prepared in the regular course of business (compare id. at 39 with id. at 257).^FN2

MacMillan similarly did not expressly mention the prospect of litigation when asked about the reasons for requesting Morgan's inspection and report. Although he vaguely testified that the purpose of the report was to "be prepared for inquiries from [the DOT] legal team" (MacMillan EBT, at 108), he did not state what the scope of those inquiries would be or specifically say that they would only involve discussions of potential litigation. Agency counsel perform a wide variety of functions for their office and, here, the record shows that DOT counsel coordinated with MacMillan and Boucher in the course of their investigation for reasons unrelated to litigation—namely, risk evaluation and mitigation with respect to broader issues that had been brought to light by the root rot discovered in the trees involved in the accident (see MacMillan EBT, at 118, 152-153). Indeed, Morgan set out to "identify additional trees" with characteristics similar to the subject trees, at the direction of MacMillan and Boucher "in coordination with [DOT] main office staff and legal team," for the purpose of "evaluating risk and coming up with a good plan to mitigate it" (id. at 118). Morgan's findings were then reduced to a summary that Boucher "elevated" to the main office (id. at 126). Additional discussions ensued "once further remediation action was considered" (id.), including a discussion with Palisades Interstate Parkway Commission staff about "the impacts required for mitigation" as a result of "Morgan's assessment that more of these trees had similar traits and needed to be removed to preserve the safety of the Palisades Interstate Parkway" (id. at 153). Thus, the record shows that Morgan's observations aided in an agency factfinding mission which, although likely motivated in part by the prospect of litigation, was also in furtherance of DOT's regulatory objective to protect the public from hazards on the road (see Donohue v Fokas, 112 AD3d 665, 667 [2d Dept 2013] [noting that "mixed/multi-purpose reports" are not privileged under CPLR 3101 (d) (2)], citing Bombard, 11 AD3d at 648; Zampatori v United Parcel Serv., 94 AD2d 974, 975 [4th Dept 1983] [ordering disclosure of mixed purpose investigation report, which in part would be used to "improve . . . security and prevent future losses"], citing Post v Great E. Mgt. Corp., 52 AD2d 761, 761 [1st Dept 1976]; see also Madison Mut. Ins. Co. v Expert Chimney Servs., Inc., 103 AD3d 995, 996 [3d Dept 2013]; Tower Insurance Co. of New York v State of New York, UID No. 2008-044-550 [Ct Cl, June 23, 2008] [Schaewe, J.] [finding that an accident report prepared by DOT was not exclusively in anticipation of litigation because DOT "would want to determine the cause" of the collapse of a portion of a state highway which resulted in multiple fatalities for the non-litigation purpose of "prevent[ing] such a situation from reoccurring"]).

The Court has reviewed the emails between DOT officials submitted by defendants in camera and, although they imply (but never explicitly state) that the prospect of litigation was one reason for the report, the emails do not suffice for defendant to meet its burden to prove that the report was specifically prepared solely for litigation. Notably, between the emails and the hundreds of pages of deposition testimony submitted to the Court, not a single person expressly discussed the potential of a lawsuit by the Apostolicos in connection with Morgan's report. Defendants could have submitted an affidavit from MacMillan, Boucher, or any other individual with personal knowledge to state directly that the report was prepared solely in anticipation of such litigation but—tellingly—they did not (see Madison Mut. Ins. Co., 103 AD3d at 996; cf. Kin Hwa Ku v City of New York, 106 AD3d 698, 699 [2d Dept 2013]). Given "the policy of this State favoring liberal discovery" (Ambac Assur. Corp. v Countrywide Home Loans, Inc., 27 NY3d 616, 624 [2016]), as well as the " 'narrow[ ]' " construction of the privilege accorded by CPLR 3101 (d) (2) (John Mezzalingua Assoc., LLC v Travelers Indem. Co., 178 AD3d 1413, [*4]1415 [4th Dept 2019], quoting Forman, 30 NY3d at 662; see also Ambac, 27 NY3d at 624), defendants failed to meet their burden to demonstrate that Morgan's report was prepared solely in anticipation of litigation (see Weisgold v Kiamesha Concord, 51 Misc 2d 456, 459-460 [Sup Ct, Sullivan County 1966]). Thus, "CPLR 3101 (d) (2) does not apply and [claimants are] under no obligation to justify disclosure of the report with a showing of undue hardship" (Donohue, 112 AD3d at 667 [internal quotation marks and citation omitted]).

Defendants' remaining objections to the disclosure of the report are without merit. Although it is true that the governing rule in this Department is that "[e]vidence of subsequent repairs and remedial measures is not discoverable or admissible in a negligence case unless there is an issue of maintenance or control" (Del Vecchio v Danielle Assoc., LLC, 94 AD3d 941, 942 [2d Dept 2012] [internal quotation marks and citation omitted]; but see Francklin v New York El. Co., Inc., 38 AD3d 329, 329 [1st Dept 2007]; Reyes-Nunez v State of New York, 66 Misc 3d 728, 732-733 [Ct Cl 2019] [noting conflict between First and Second Departments regarding the discoverability of such records]), the report does not discuss in any significant detail remedial measures taken by defendants after the accident occurred. The report's passing mention of the fact that other trees in the area were removed after the accident occurred could not possibly prejudice defendants given that this fact is already known to claimants. Moreover, the report contains relevant observations with respect to the existence of a dangerous condition before the date of the accident. Contrary to defendants' contention, the fact that Morgan's inspection occurred after the accident does not automatically render her observations irrelevant. An arborist may obtain relevant information about a tree's pre-accident condition by conducting a post-accident inspection (see e.g. Babcock v County of Albany, 85 AD3d 1425, 1426-1427 [3d Dept 2011]).

Having determined that disclosure of Morgan's report is warranted, the Court must consider defendants' alternative request that the opinions and conclusions contained therein be redacted. Defendants' conclusory statement (see Masry Affirm, ¶ 47) is devoid of any citation to statutory authority supporting such relief. Although defendants failed to establish that CPLR 3101 (d) (2) applies to Morgan's report, the Court must begin its analysis with the second sentence of CPLR 3101 (d) (2), which has been held to protect from disclosure any "'mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation'" contained in a document, even if that document was not prepared solely for litigation (Blakesley v State of New York, 244 AD2d 947, 947 [4th Dept 1997], quoting CPLR 3101 [d] [2]; see Wylie v Consolidated Rail Corp., 198 AD2d 884, 885 [4th Dept 1993]; see also Tower Insurance Co. of New York, UID No. 2008-044-550 [citing Blakesley and Wylie]). However, to the extent Morgan's report contains opinions and conclusions, CPLR 3101 (d) (2) does not prohibit their disclosure because defendants have not shown—let alone argued—that such statements "concern the litigation" (Beaumont v Smyth, 306 AD2d 921, 922 [4th Dept 2003]). As explained above, the report was drafted months before a notice of intention to file a claim was served in this matter and does not expressly reference potential litigation. Further, the report—which was prepared by an arborist—does not describe any legal theories or strategies of an attorney or other party representative.

Furthermore, claimants correctly argue that Morgan's opinions and conclusions need not be redacted because the expert opinions of a party's employee are subject to disclosure without restriction. To be sure, the scope of expert disclosure is generally defined by CPLR 3101 (d) (1) (i) and, in cases where parties have sought additional expert disclosure pursuant to the "special [*5]circumstances" exception of CPLR 3101 (d) (1) (iii), courts have limited such disclosure to factual observations and have excluded the expert's opinions (see Rosario v General Motors Corp., 148 AD2d 108, 113 [1st Dept 1989]; see also Flex-O-Vit USA v Niagara Mohawk Power Corp., 281 AD2d 980, 980 [4th Dept 2001]; Tedesco v Dry-Vac Sales, 203 AD2d 873, 874 [3d Dept 1994]). However, "the scope of disclosure for employees of a party, whether noticed as experts or not, is defined by CPLR 3101 (a), rather than CPLR 3101 (d), which governs the extent of disclosure in instances where non-employee expert witnesses are involved" (Lippel v City of New York, 281 AD2d 327, 328 [1st Dept 2001]; see Glasburgh v Port Auth. of NY & N.J., 213 AD2d 196, 197 [1st Dept 1995]). Thus, there is a line of cases holding that a party or party's employee who is also an expert may be deposed and asked questions regarding their expert opinion (see Johnson v New York City Health & Hosps. Corp., 49 AD2d 234, 236-237 [2d Dept 1975]; Lingener v State Farm Mut. Auto. Ins. Co., 195 AD2d 838, 839 [3d Dept 1993]; see also Glasburgh, 213 AD2d at 197; Maser v County of Onondaga, 90 AD2d 970, 970 [4th Dept 1982] ["Even if the engineer's opinion was arguably 'prepared for litigation,' the fact that the expert is an employee of defendant brings his opinion within the exception to the rule prohibiting the examination of experts' opinions prepared for litigation"]; see generally McDermott v Manhattan Eye, Ear & Throat Hosp., 15 NY2d 20 [1964]). Although these "employee-expert" cases involve the scope of questioning during a deposition rather than the disclosure of written reports, the Court agrees with claimants that the rule must logically extend to the disclosure of opinions stated in writing as well. The scope of disclosure is the same for all "matter material and necessary" to the action (CPLR 3101 [a]), and it would be incongruous to hold that claimants may ask Morgan for her expert opinion during a deposition but cannot obtain a written version of same.

Defendants' cursory citation to Donohue v Fokas (112 AD3d 665 [2d Dept 2013]) for the proposition that the report's conclusions and opinions should be redacted is misplaced. In Donohue, after concluding that CPLR 3101 (d) (2) did not apply to a "cause and origin" report prepared at the direction of a nonparty insurer because the report was not prepared solely for litigation, the Second Department directed the report be produced for in camera inspection so the trial court could redact opinions and conclusions contained within it (id. at 666). Donohue is distinguishable from the instant case, however, because Donohue did not involve the opinions or conclusions of a party's employee. Notably, the Donohue Court did not cite any statutory authority to support its directive to redact opinions and conclusions, instead relying on a string of cases where an expert report was prepared by a nonparty (see id. at 667, citing McDonald v Finley's Inc., 20 AD3d 900, 901 [4th Dept 2005] and Commerce & Indus. Ins. Co. v Laufer Vision World, 225 AD2d 313, 314 [1st Dept 1996]); where no information about the author or content of the expert report was provided (see id., citing Perfido v Messina, 125 AD2d 654 [2d Dept 1986]); or which generally involved the production of materials for in camera review but did not specifically involve the redaction of opinions and conclusions (see id., citing Ural v Encompass Ins. Co. of Am., 97 AD3d 562, 566-567 [2d Dept 2012]). None of these cases—Donohue included—took into account, or had any reason to take into account, the rule allowing disclosure of an employee-expert's opinions pursuant to CPLR 3101 (a). Therefore, Morgan's opinions and conclusions need not be redacted and the entirety of the report must be disclosed.

Defendants' cursory objections to claimant's request to take Morgan's deposition are likewise without merit. As explained above with respect to Morgan's report, her testimony is [*6]relevant to the action and she did not gather information solely in anticipation of litigation (compare McCoy, 52 AD3d at 1213). Morgan is a state employee and may be deposed pursuant to CPLR 3101 (a) "without restriction as to opinion testimony" (Glasburgh, 213 AD2d at 197; see Johnson, 49 AD2d at 237).

Finally, defendants' objections to producing Jeffrey Strike for a deposition are also without merit. Strike was the DOT Highway Maintenance Supervisor 2 (HMS2) responsible for conducting roadside inspections of trees along the Palisades Interstate Parkway from early 2021 up until the date of the accident (see Papain Affirm in Supp of Mot, Exh H [DeGraw EBT], at 87-88). Defendants do not argue that Strike's testimony is irrelevant; rather, they contend that Strike's deposition would be redundant because they have already produced three DOT witnesses with knowledge of DOT's practices and procedures regarding roadside inspections. Although defendants have a "right to determine which of [their] officers or employees with knowledge of the facts will appear for a deposition" (Heins v Vanbourgondien, 180 AD3d 1019, 1026 [2d Dept 2020]), claimants have demonstrated their entitlement to take another deposition by showing that the witnesses thus far produced had "insufficient knowledge" and there is a "substantial likelihood" that Strike "possess[es] information which is material and necessary to the prosecution of the case" (id. [internal quotation marks and citation omitted]; see Cea v Zimmerman, 142 AD3d 941, 944 [2d Dept 2016]). In negligence claims premised upon injuries caused by fallen trees, information regarding the inspection procedures used by a defendant with respect to those trees is critical to determining liability (see Rushton v State of New York, 189 AD3d 1488, 1490 [2d Dept 2020]; Fowle v State of New York, 187 AD2d 698, 699 [2d Dept 1992]; Diamond v State of New York, 53 AD2d 958, 959 [3d Dept 1976]). Claimants persuasively argue that Strike—the person who would have been on the ground conducting inspections at the time of the accident and for more than a year beforehand—would provide relevant testimony about matters of which the other witnesses would not have had personal knowledge. Indeed, Johnathan DeGraw—a former HMS2 and Strike's direct supervisor at the time of the accident—testified during his deposition that individuals in the HMS2 role are the only persons responsible for conducting drive-by inspections of trees (see DeGraw EBT, at 52). DeGraw indicated that the HMS2 has some amount of discretion in the manner of conducting drive-by inspections (see id. at 24 [noting there was no specific policy as to how a drive-by inspection would be conducted by an HMS2]; id. at 27 [operator of vehicle has discretion regarding vehicle speed during inspections]). And although the HMS2 would have provided reports to DeGraw regarding any dangerous trees they observed during their inspections, DeGraw testified that he has since discarded those reports (see id. at 50, 198). DeGraw also testified he did not recall conducting any drive-by inspections of trees in the area where the accident occurred (see id. at 88).

Accordingly, it is hereby

ORDERED that claimants' motion is GRANTED and defendants are directed to disclose Morgan's unredacted revised report, and to produce DOT employees Elena Morgan and Jeffrey Strike for depositions; and it is further

ORDERED that defendants' cross-motion is DENIED.

October 12, 2025

Albany, New York

ZAINAB A. CHAUDHRY

Judge of the Court of Claims

Papers Considered:

Amended Claims in Claim Nos. 138382, 138383, and 138384, filed April 21, 2023;

Answers to Amended Claims filed in Claim Nos. 138382, 138383, and 138384, filed May 22, 2023;

Notice of Motion and Affirmation of Nicholas Papain, Esq. in Support of Motion, with Exhibits A-U, filed March 31, 2025;

Notice of Cross-Motion and Affirmation of Assistant Attorney General Albert E. Masry in Opposition to Motion and in Support of Cross-Motion, with Exhibits 1-5 submitted in camera, filed July 23, 2025; and

Reply Affirmation and Affirmation in Opposition to Cross-Motion of Nicholas Papain, Esq., filed August 5, 2025.