Erie Lackawanna Railway Co. v. State

—Order unanimously modified in accordance with memorandum and, as modified, affirmed, without costs. Memorandum: The State appeals from an order of the Court of Claims insofar as the order directed the State to produce a copy of an unfiled appraisal of the premises which are the subject of this highway appropriation. The State claims that the appraisal is immune from discovery because it has been used only for settlement negotiations (CPLR 3101, subd [d]). By statute (CPLR 3140) and court rule (22 NYCRR 1024.24, 1200.27), the parties to an appropriation claim are directed to exchange all appraisal reports intended to be used at trial. Unfiled reports used for settlement negotiations and not intended for use at trial generally may not be discovered. We have held, however, that unfiled appraisal reports which have been "adopted” by the State or condemning authority are not immune from discovery (Niagara Falls Urban Renewal Agency v Clifton Holding, 43 AD2d 900; cf. Swartout v State of New York, 44 AD2d 766). Once used in dealing with some third party, the report is not material prepared solely for litigation even though it may also be used for settlement or negotiation. The State having thus adopted the appraisal, it is *1090available by way of discovery and its contents may be used in evidence as an admission against interest. The only issue in this case is whether 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. That cannot be determined from the conflicting affidavits submitted on this motion and the order is modified to direct an oral examination of the State’s agents, with leave to renew the motion for discovery thereafter, if respondent is so advised. (Appeals from order of Court of Claims—discovery—appropriation.) Present—Marsh, P. J., Moule, Simons, Goldman and Witmer, JJ.