Summary
holding that insurance reports prepared before claim paid or rejected discoverable
Summary of this case from Nouveau Elevator Indus., Inc. v. N.Y. Marine & Gen. Ins. Co.Opinion
March 10, 1994
Appeal from the Supreme Court, Nassau County (Stuart Ain, J.).
The IAS Court did not abuse its discretion in directing plaintiffs to respond to the defendants' notices of discovery and inspection requiring plaintiffs to provide written authorizations for the release of, inter alia, the records of non-party insurers and/or adjusters pertaining to insurance claims made and subsequently paid to the plaintiffs for the fire loss sustained on their property which forms the basis for the underlying action. CPLR article 31, implementing the strong policy of this State favoring disclosure, specifically provides that "[t]here shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action" (CPLR 3101 [a]), with the words "material and necessary" liberally interpreted to require disclosure, upon request, of any facts bearing on the controversy which will assist in sharpening the issues for trial (Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 405). The burden of showing that the disclosure sought is improper is upon the party seeking the protective order, the plaintiffs herein (Koump v. Smith, 25 N.Y.2d 287, 294), since reports of insurance investigators or adjusters which were prepared before a claim was either paid or rejected, are discoverable as having been made in the regular course of the insurance company's business (Landmark Ins. Co. v. Beau Rivage Rest., 121 A.D.2d 98, 101), and since the court is generally precluded from inquiring into the propriety of discovery requests, where, as here, the plaintiffs have failed to timely seek a protective order pursuant to CPLR 3122 (Zurich Ins. Co. v State Farm Mut. Auto. Ins. Co., 137 A.D.2d 401, 401-402).
The record indicates that the requests were not merely a blanket "fishing expedition", but rather sought authorizations and records from named insurance companies pertaining to the specific singular incident in question, the plaintiffs' fire loss, which occurred on a specified date, and were therefore sufficiently specific to place the plaintiffs on notice as to the exact nature of the particular items being sought (see, Mendelowitz v. Xerox Corp., 169 A.D.2d 300). Further, the requested items are discoverable as material and necessary to the defense of the underlying action (Sack v. North Am. Sys., 115 A.D.2d 721).
We have reviewed plaintiffs' remaining claims and find them to be without merit.
Concur — Rosenberger, J.P., Ross, Asch, Rubin and Tom, JJ.