Travelers Prop. & Cas. Ins. Co. v. 23RD St. Props., Williams Real Estate Co.

Full title: THE TRAVELERS PROPERTY & CASUALTY INSURANCE COMPANY a/s/o INTERPUBLIC…

Court: SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART 59

Date published: Jan 7, 2008

2008 N.Y. Slip Op. 33713 (N.Y. Sup. Ct. 2008)

Opinion

Index No.: 102312/05

01-07-2008

THE TRAVELERS PROPERTY & CASUALTY INSURANCE COMPANY a/s/o INTERPUBLIC GROUP COMPANIES, Plaintiff, v. 23RD STREET PROPERTIES, WILLIAMS REAL ESTATE CO., INC., IBEX CONSTRUCTION, L.L.C., and HOME DEPOT U.S.A., INC., Defendants.

DEBRA A. JAMES Justice

PRESENT: DEBRA A. JAMES Justice Motion Date: 09/25/07 Motion Seq. No.: 06 Motion Cal. No.: 106 Upon the foregoing papers,

The court shall grant the motion and compel the plaintiff to produce the records sought by defendants including (1) copies of the "cause and origin" report, (2) copies of any and all adjuster's reports relating to the property damage claim, and (3) a written authorization to obtain the fire department call report relating to the central station monitoring call.

Governing law states that

Clearly, each of the documents prepared for defendant . . . embodying the writer's observations and findings
concerning the explosion, was a "written report of an accident" (CPLR 3101 [g]). Therefore, the demand falls within the ambit of CPLR 3101 (g), which would require disclosure of the documents if prepared in the ordinary course of defendant's business operations or practices. The fact that both [defendant's employee and retained consultant] were directed to the scene on the very day of the explosion, coupled with defendant's admission that it was defendant's regular practice to dispatch a claims person immediately after the occurrence of an accident, provides more than an adequate basis for finding that the reports were prepared in the ordinary course of defendant's business. Defendant, with the burden of establishing that the documents are somehow exempt from disclosure, has offered no evidence to the contrary.

Merrick v Niagara Mohawk Power Corp., 144 AD2d 878, 879 (3d Dept 1988). Furthermore, "the mere fact that accident reports are compiled by a liability insurer does not ipso facto render the reports immune from disclosure. . . accident reports made in the regular course of business, by uninsured or self-insured entities, are generally not privileged from disclosure, so long as they are not prepared for the sole purpose of litigation. Moreover, when statements are given to a liability insurer's claims department as part of an internal investigation or for internal business purposes, as well as for defense purposes, they are not immune from discovery as material prepared solely in anticipation of litigation. 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." Agovino v Taco Bell 5083, 225 AD2d 569, 570-571 (2d Dept 1996) (citations omitted); see Flex-O-Vit USA, Inc. v Niagara Mohawk Power Corp., 281 AD2d 980, 981 (4^th Dept 2001) (fire investigation file and cause and origin investigation report are discoverable pursuant to CPLR 3101 [a] [1]).

In opposition to the motion plaintiff merely submits the affirmation of counsel in an attempt to come within the exemption to disclosure under CPLR 3101 (d). However, such an "affirmation, without more, is insufficient to sustain the [] burden of demonstrating that the interviews and the reports were prepared exclusively for litigation." Agovino, supra, 225 AD2d at 571; see Viruet v City of New York, 97 AD2d 435, 436 (1^st Dept 1983) ("conclusory assertions that the reports were prepared exclusively for litigation, not as part of its routine internal practices, are not enough" to exempt the material from disclosure).

Accordingly, it is

ORDERED that the motion is GRANTED; and it is further

ORDERED that pursuant to CPLR 3124, plaintiff is hereby compelled to respond to the January 16, 2007 Notice for Discovery and Inspection served by defendant Williams Real Estate Co., Inc., within 14 days of service of a copy of this Order upon plaintiff, by producing the records sought by defendants including (1) copies of the "cause and origin" report, (2) copies of any and all adjuster's reports relating to the property damage claim, and (3) a written authorization to obtain the fire department call report relating to the central station monitoring calls.

ORDERED that the parties are hereby directed to attend a status conference on February 26, 2008, at 11:00 A.M., at the Courthouse, IAS Part 59, Room 1254, 111 Centre Street, New York; and it is further

ORDERED that plaintiff's time to file a note of issue is extended to March 31, 2008.

This is the decision and order of the court. Dated: January 7, 2008

ENTER:

/s/ _________

J.S.C.