Summary
prohibiting discovery disclosure because "unsubstantiated bare allegations of relevancy are insufficient to establish the factual predicate regarding relevancy"
Summary of this case from Home Equity Mortg. Trust Series 2006-5 v. DLJ Mortg. Capital, Inc.Opinion
May 8, 1989
Appeal from the Supreme Court, Kings County (Hurowitz, J.).
Ordered that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs; and it is further,
Ordered that the depositions of the four additional witnesses shall occur at times and places to be provided in written notices of not less than 10 days, or at such times and places as the parties may agree.
The plaintiffs met their burden of showing that the witness produced by the defendant Brooklyn Union Gas Company possessed "inadequate knowledge as to matters bearing on material issues in the case, which knowledge would assist the plaintiffs in preparation for trial" (Simon v Advance Equip. Co., 126 A.D.2d 632; see also, Schillaci v Jamaica Sav. Loan, 90 A.D.2d 770). Therefore, the court did not improvidently exercise its discretion in directing the depositions of the four additional witnesses named at the original deposition who actually made the service calls to the premises at issue and would be most familiar with material facts necessary to the plaintiffs' case (see, Allen v Crowell-Collier Publ. Co., 21 N.Y.2d 403).
The court properly barred disclosure of proof of loss statements submitted to the plaintiffs' respective insurance companies. It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims (see, Seigel, NY Prac § 345; CPLR 3101 [a]; 3120; Allen v Crowell-Collier Publ. Co., supra; Herbst v Bruhn, 106 A.D.2d 546), and unsubstantiated bare allegations of relevancy are insufficient to establish the factual predicate regarding relevancy (see, Herbst v Bruhn, supra). The appellant here states that "[o]bviously" the proof of loss statements are relevant because they will help determine the losses incurred. This is a bald allegation which, without more, will not suffice to show relevancy. If the appellant needs information regarding the losses incurred, it need only demand a bill of particulars.
We further find that the Supreme Court did not improvidently exercise its discretion in holding that the experts' reports prepared exclusively for litigation were exempt from disclosure (see, Faraone v Carrollwood Assocs., 123 A.D.2d 344; Landmark Ins. Co. v Beau Rivage Rest., 121 A.D.2d 98; Sack v North Am. Sys., 115 A.D.2d 721). Brown, J.P., Lawrence, Eiber and Sullivan, JJ., concur.