Opinion
February 2, 1990
Appeal from the Supreme Court, Cattaraugus County, Horey, J.
Present — Callahan, J.P., Boomer, Green, Pine and Lawton, JJ.
Order unanimously reversed on the law without costs and motion denied. Memorandum: Plaintiffs sued the Village of Allegany for property damage and personal injuries resulting from the backup of a sewer owned by the village. A representative of the liability insurance carrier for the village inspected plaintiffs' house and talked to plaintiffs and thereafter arranged for a company to do preliminary cleaning of the house. Allegedly, plaintiffs refused to allow the cleaning to proceed and the liability carrier, on behalf of the village, declined to pay for the damages, alleging as a defense that plaintiffs failed to mitigate their damages. In the lawsuit, plaintiffs sought discovery of the files of the liability carrier and the court granted the motion and ordered in part that defendant turn over to plaintiffs "the reports, records, writings, correspondence and other documents prepared by the Hartford Insurance Company relevant to their investigation, settlement and compromise of the incident which is the subject matter of this action, and Defendant's second Affirmative defense of failure to mitigate damages, but only as to those [matters] which were prepared prior to the date of the service of the Summons commencing the action".
The files of a liability insurance carrier are deemed to be material prepared for litigation whether the material was prepared before or after suit commences and are protected from disclosure pursuant to CPLR 3101 (d) (2). "Whether a claim is accepted or rejected [by the liability carrier] in advance of litigation, or must be resolved in the litigation process, is incidental to the ultimate purpose of protecting the insured from liability for payment under an enforcable judgment. In consequence, once an accident has arisen there is little or nothing that the insurer or its employees do with respect to an accident report except in contemplation and in preparation for eventual litigation or for a settlement which may avoid the necessity of litigation." (Kandel v Tocher, 22 A.D.2d 513, 515; see also, Finegold v Lewis, 22 A.D.2d 447; Parker v New York Tel. Co., 24 A.D.2d 1067; Mosier v Van Der Horst Research Corp., 25 A.D.2d 938.)
Because the files of the Hartford are deemed to be matters prepared for litigation, and because plaintiffs have not alleged any exceptions justifying the disclosure of such material (see, CPLR 3101 [d] [2]), the court improperly directed the disclosure of the files of the Hartford Insurance Company.