Summary
In American Reliance Ins. Co. v National Gen. Ins. Co. (149 A.D.2d 554), we affirmed a prior order in this case by the Supreme Court, Queens County, which had directed one of the members of the law firm which formerly represented the plaintiff to appear for a deposition as a nonparty.
Summary of this case from Am. Reliance Ins. Co. v. Nat'l Gen. Ins. Co.Opinion
April 17, 1989
Appeal from the Supreme Court, Queens County (Joy, J.).
Ordered that the order is affirmed insofar as appealed from, with one bill of costs; and it is further,
Ordered that the deposition shall be conducted upon written notice of not less than 10 days to be given by the defendants to the plaintiff, or at such time as the parties may agree.
The plaintiff, the issuer of an excess insurance policy, commenced this action against the primary insurer and its attorney, upon the theory that they did not exercise good faith in the negotiation and settlement of the underlying tort claim. The plaintiff specifically alleged, in its bill of particulars, that the defendants refused to cooperate with the plaintiff's attorney by failing to provide counsel with information which was necessary to properly evaluate the tort action.
We find, as did the Supreme Court, that the defendants are entitled to depose the attorney who represented the plaintiff in connection with the negotiation and settlement of the lawsuit upon which this action is based, since the plaintiff has affirmatively placed in issue its attorney's knowledge of facts or communications which might tend to prove bad faith on the part of the defendants (see, Slabakis v. Drizin, 107 A.D.2d 45; Matter of Civil Serv. Employees Assn. v. Ontario County Health Facility, 103 A.D.2d 1000; Glen 4912 Corp. v. Strauss, 44 A.D.2d 582).
We note, moreover, that the plaintiff's efforts to shield itself from disclosure of relevant information under the guise of the attorney-client privilege is unavailing (see, Zurich Ins. Co. v. State Farm Mut. Auto. Ins. Co., 137 A.D.2d 401; Town of Nassau v. Phoenix Assur. Co., 57 A.D.2d 992; Groben v. Travelers Indem. Co., 49 Misc.2d 14, affd 28 A.D.2d 650; Colbert v. Home Indem. Co., 45 Misc.2d 1093, affd 24 A.D.2d 1080).
We have examined the plaintiff's remaining contention and find it to be without merit. Thompson, J.P., Lawrence, Eiber and Spatt, JJ., concur.