Opinion
July 22, 1993
Appeal from the Supreme Court, Rensselaer County (Traficanti, J.).
In 1982, a motor vehicle operated by plaintiff was involved in an automobile accident in which David Crandall was killed (see, Crandall v. Lingener, 113 A.D.2d 529, lv denied 67 N.Y.2d 607). A wrongful death action was thereafter instituted against plaintiff seeking damages in the amount of $1,250,000. Defendant State Farm Mutual Automobile Insurance Company, which provided plaintiff with liability coverage of $50,000, retained defendant Maynard, O'Connor Smith to represent plaintiff in the wrongful death action. Notwithstanding the apparent effort by Crandall's estate to settle within the policy limits, the wrongful death action went to trial and the jury awarded damages of $910,000 and assessed 75% liability against plaintiff (see, supra, at 532-533). On appeal, this Court ordered a new trial on the issue of damages only unless Crandall's estate stipulated to reduce the verdict in its favor to $375,000 ($500,000 less 25%) (supra, at 534).
Plaintiff commenced these actions alleging, inter alia, that State Farm failed to act in good faith in the handling of the claim and that Maynard, O'Connor Smith committed legal malpractice. Pursuant to pretrial discovery proceedings, plaintiff sought the deposition of Mae D'Agostino, an attorney with Maynard, O'Connor Smith, who worked on the wrongful death action. D'Agostino was asked questions requiring her opinion regarding proper legal standards and procedures. Maynard, O'Connor Smith objected to the questions as improperly calling for expert opinion testimony and directed D'Agostino not to answer. During the deposition of Rowland Brown, claims superintendent for State Farm, plaintiff asked similar questions calling for his opinion relating to insurance industry standards and practices. State Farm likewise objected to the questions and directed Brown not to answer. Eventually, Supreme Court ordered, inter alia, that the depositions continue and that plaintiff may inquire with respect to the deponents' opinion concerning standards in the insurance industry and legal profession, as applicable. Defendants appeal.
In light of the liberal policy favoring broad disclosure (see, Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3101:5, at 16-17), we believe that Supreme Court properly ordered that D'Agostino and Brown answer the disputed questions — essentially seeking to determine whether Maynard, O'Connor Smith and State Farm deviated from accepted standards in the legal profession and insurance industry, respectively. We reject defendants' argument that the rule permitting a defendant to be questioned as an expert (see, McDermott v. Manhattan Eye, Ear Throat Hosp., 15 N.Y.2d 20, 29-30; Johnson v. New York City Health Hosps. Corp., 49 A.D.2d 234, 237) is limited to medical malpractice actions. Defendants have provided no authority for such a limitation and our research has disclosed none. In our view, plaintiff is entitled to inquire into the facts and criteria upon which defendants' determination refusing the offer to settle within the policy limits was made and to seek defendants' expert testimony on other issues that bear on the controversy, without first demonstrating the inability to procure an expert (see, L. Woerner, Inc. v. Travelers Cos., 174 A.D.2d 1056; Maser v. County of Onondaga, 90 A.D.2d 970, lv dismissed 58 N.Y.2d 609, 1047; Johnson v. New York City Health Hosps. Corp., supra; 3A Weinstein-Korn-Miller, N Y Civ Prac ¶ 3101.36; cf., Brandes v. Pettibone, Inc., 62 A.D.2d 1133, 1134).
Finally, given that Supreme Court's order specifically permits the parties to state substantive objections on the record during the course of the depositions and to seek rulings on the propriety of questions felt to be violative of a witness's constitutional rights, or of some privilege recognized by law or palpably irrelevant (see, Watson v. State of New York, 53 A.D.2d 798, 799), we agree with defendants that it was improper for Supreme Court to direct that the depositions "be conducted with standard stipulations".
Weiss, P.J., Levine, Mahoney and Casey, JJ., concur. Ordered that the order is modified, on the law, without costs, by deleting so much of the second decretal paragraph as directs that the depositions shall be conducted with standard stipulations, and, as so modified, affirmed.