Opinion
January 31, 1992
Appeal from the Supreme Court, Erie County, Rath, Jr., J.
Present — Boomer, J.P., Pine, Balio, Lawton and Davis, JJ.
Order affirmed with costs. Memorandum: Supreme Court properly denied defendants' motion for a protective order. Defendants failed to satisfy their burden of demonstrating that the requested materials were privileged or otherwise not discoverable (see, Central Buffalo Project Corp. v. Rainbow Salads, 140 A.D.2d 943; Baratta v. Pallotta, 81 A.D.2d 1040; see generally, Durst, Fuchsberg Kleiner, Modern New York Discovery §§ 4:5, 19:3). Discovery pursuant to CPLR 3101 (f) is not limited to production of the insurance policy; a plaintiff is also entitled to discover those matters bearing upon the existence and scope of coverage (see, Kimbell v. Davis, 81 A.D.2d 855; Folgate v. Brookhaven Mem. Hosp., 86 Misc.2d 191; cf., Simon v. Searle Co., 816 F.2d 397, cert denied 484 U.S. 917; Union Carbide Corp. v. Travelers Indem. Co., 61 FRD 411).
All concur, except Boomer, J.P., and Pine, J., who dissent and vote to reverse in the following Memorandum.
We respectfully dissent. The materials demanded by plaintiff in its motion to produce, which consisted of correspondence and other memoranda from defendants' insurance company, are not "material and necessary in the prosecution" of plaintiff's cause of action (CPLR 3101 [a] [1]), and CPLR 3101 (f) does not require their production. Subdivision (f) of CPLR 3101 provides that a party may obtain discovery of "the existence and contents of any insurance agreement" by which an insurance company may be liable to satisfy a judgment in the action. The language of the statute is clear and unambiguous. The statute should be construed according to the ordinary meaning of its words (Riegert Apts. Corp. v. Planning Bd., 57 N.Y.2d 206; McKinney's Cons Laws of NY, Book 1, Statutes § 76). Defendants fully satisfied the requirements of that subdivision when they delivered to plaintiff a copy of their insurance policy. The holding of the majority and of the courts in Kimbell v. Davis ( 81 A.D.2d 855) and in Folgate v. Brookhaven Mem. Hosp. ( 86 Misc.2d 191) requires defendants to produce materials beyond those required by the express language used by the Legislature.