Opinion
Index No. 100603/11
07-25-2014
SHIRA G. BELFER, Plaintiff, v. TRAVELERS INSURANCE COMPANY a/k/a Travelers Indemnity Company, a/k/a Travelers Casualty and Surety Company, a/k/a The Farmington Casualty Company, VICTORIA OWNERS CORP., VIRGINIA MANNING, F&L CLAIMS SERVICE, INTERSTATE INDEMNITY CO., JOHN DOE INDEMNITY COMPANY, Defendants.
For plaintiff, self-represented: Shira G. Belfer 600 Columbus Ave., #13A New York, NY 10024 212-243-1572 For Coop defendants: Tracy J. Abatemarco, Esq. Wood Smith et al. 222 E. 41st St., 21st Fl. New York, NY 10017 212-999-7100
Motion seq. no. 009
DECISION & ORDER
BARBARA JAFFE, JSC: For plaintiff, self-represented:
Shira G. Belfer
600 Columbus Ave., #13A
New York, NY 10024
212-243-1572
For Coop defendants:
Tracy J. Abatemarco, Esq.
Wood Smith et al.
222 E. 41st St., 21st Fl.
New York, NY 10017
212-999-7100
By order to show cause, plaintiff moves pursuant to CPLR 3124 and 3126 for an order compelling the Coop defendants to provide discovery demands and striking their answer upon their failure to do so. Defendants oppose.
Plaintiff contends that defendants have failed to provide her with certain information and/or documents, which defendants dispute.
A. Environmental tests
Plaintiffs seeks copies of any environmental tests performed in the building. (Affidavit of Shira Belfer, dated May 7, 2014 [Belfer Affid.]). Defendants contend that the request is overly broad as environmental tests done in any part of the building other than plaintiff's apartment are irrelevant, and observe that they had produced a copy of the test performed on her apartment. (Affirmation of Tracy J. Abatemarco, Esq., dated May 15, 2014 [Abatemarco Aff., Exh. B).
Absent any reason to believe that environmental tests performed on parts of the building other than plaintiff's apartment would lead to relevant evidence concerning the environmental state of her apartment after the incident, I find that defendants have complied with this demand. To the extent that the City of New York performed its own tests, as plaintiff alleges, defendants deny possessing the test results and plaintiff does not claim otherwise.
B. Records of discussions between defendants and Travelers as to plaintiff's claim and damages
Plaintiff argues that communications between defendants and Travelers, her insurance company, regarding her claim are relevant as they may show defendants' and Travelers's positions as to their relative responsibility for the flood in her apartment, as well as the reasons for partially denying her request for reimbursement for her damages. She denies that communications between defendants and Travelers are protected by privilege.
Defendants assert that plaintiff may obtain Travelers's records directly from Travelers, and that communications between them and Travelers are attorney-client privileged as they arise out of communications between an insured and its insurer.
To the extent that plaintiff seeks Travelers's documents, she may subpoena them directly from Travelers. However, as Travelers was plaintiff's insurance carrier, not defendants, there is no confidential relationship between them, and defendants do not allege that the documents may contain privileged communications between them and their attorney or their insurance company. Moreover, if the documents concern Travelers' investigation into plaintiff's claim and whether to deny or pay it, the documents are not privileged. (See Ntl. Union Fire Ins. Co. of Pittsburgh v Transcanada Energy USA, Inc., 114 AD3d 595 [1st Dept 2014] [documents prepared in ordinary course of insurer's investigation of whether to pay or deny claim not privileged, even if investigation conducted by attorney]). Thus, defendants must respond to plaintiff's request for these documents.
C. Records maintained by defendants related to maintenance of building's heating system,
including all nines and conduits transmitting fluids within building
Plaintiff contends that her request for records related to the whole building for the last 10 years is relevant to whether defendants properly maintained the system building-wide and whether they were on notice of any problems with the system based on prior incidents or accidents. Defendants argue that the demand is overly broad and burdensome.
As the records for the entire building may show both whether there were problems in the overall heating system that may have contributed to the flood and also whether defendants had notice of any problems with the system before the flood, they are relevant, but will be restricted to the five years before the incident, from 2004 to 2009. (See Santiago v Pyramid Crossgates Co., 243 AD2d 955 [3d Dept 1997] [granting motion to compel discovery of all prior incidents similar to one at issue; condition of entire mall roof and prior instances of leaks throughout mall material to inquiry of defective design, construction and maintenance of mall ceiling and roof and to question of notice of conditions and failure to correct them]; see also Bush v Mechanicsville Warehouse Corp., 69 AD3d 1207 [3d Dept 2010] [jury could have found that defendant had constructive notice of dangerous condition where accident occurred by knowledge of recurring problems with roof leaks elsewhere in warehouse]; Armstrong v Ogden Allied Facility Mgt. Corp., 281 AD2d 317 [1st Dept 2001] [constructive notice may be found based on similar hazardous condition known to have existed for at least two years elsewhere in building]).
D. Copies of claim filed by defendants with their insurance company related to plaintiff's
incident
Defendants have satisfactorily established that the documents supplied by them to plaintiff, and annexed to their opposition papers, provide the information requested by plaintiff in this demand.
E. Copy of provision in the Coop's proprietary lease, if any, that pertains to the Coop's
responsibility for damages or repairs in event of incident similar to plaintiff's
Defendants are directed to specify the provision(s) in the proprietary lease governing damages and/or repairs related to the incident at issue here.
Accordingly, it is hereby
ORDERED, that plaintiff's motion to compel is granted to the extent that defendants are directed, within 45 days of the date of this order, to provide plaintiff with the following:
(1) Records or documents related to discussions with Traveler's concerning plaintiff's claim and/or damages;
(2) Records regarding maintenance of the building's heating system, including all pipes and conduits transmitting fluids within the building, from 2004 to 2009; and
(3) A statement regarding which provision(s) of the propriety lease relates to the incident and/or repairs and damages at issue here; and it is further
ORDERED, that the parties are directed to appear for a compliance conference on September 24, 2014 at 2:15 pm, in Room 279, 80 Centre Street, New York, New York.
ENTER:
/s/_________
Barbara Jaffe, JSC
DATED: July 25, 2014
New York, New York