Opinion
February 23, 1999
Appeal from the Supreme Court, New York County (Edward Lehner, J.).
This action arises out of a July 7, 1993 fire at plaintiffs' premises for which it has recovered from its insurer, defendant, both its building and personal property loss. The subject of this action is plaintiffs' business interruption claim, which defendant challenges for, inter alia, misrepresentation and concealment of material facts concerning the loss and the amount thereof. In the course of discovery, plaintiffs served a production demand for documents as to 35 of which defendant asserted privilege or irrelevancy. As to 21 documents defendant claimed attorney-client privilege, as to 8 documents requesting reinsurance information and 4 documents seeking reserve information defendant claimed, inter alia, irrelevancy and as to 2 documents defendant denied the work product privilege. The court conducted an inspection, in camera, and upheld all the objections to the documents' production, finding, specifically, that an accountant's report, a detailed evaluation of the loss claimed by plaintiffs, which was prepared prior to the commencement of this action, was a privileged work product. After review of the documents, we affirm the motion court's determination except with respect to the accountant's report, which is discoverable. "[T]he payment or rejection of claims is a part of the regular business of an insurance company" ( Millen Indus. v. American Mut. Liab. Ins. Co., 37 A.D.2d 817). Reports prepared by or for an insurer before its insured's direct claim is either paid or rejected are discoverable "as having been made in the regular course of the [insurer's] business" ( Roman Catholic Church of Good Shepherd v. Tempco Sys., 202 A.D.2d 257, 258).
We have examined plaintiffs' other arguments and find that they are without merit.
Concur — Sullivan, J. P., Nardelli, Rubin and Mazzarelli, JJ.