22 NYCRR 202.21 Note of issue and certificate of readiness
CPLR § 3101(d) Trial Preparation (2) Materials
CPLR § 3101(c) Attorney's work product
McClier Corp. v United States Rebar, Inc., 2009 NY Slip Op 06786 (App. Div., 1st, 2009)
In response to plaintiff's discovery demands, defendants submitted
privilege logs that identified each of the documents withheld and set
forth a basis for the assertion of a privilege as to each. The motion
court then conducted an in camera review of the withheld documents and
ruled that most were protected by either the attorney-client privilege
(CPLR 3101[b]) or the immunities for attorney work product (CPLR
3101[c]) and materials prepared for litigation (CPLR 3101[d][2]). No
basis exists to disturb this ruling. Documents in an insurer's claim
file that were prepared for litigation against its insured are immune
from disclosure (Grotallio v Soft Drink Leasing Corp., 97 AD2d
383 [1983]), and, while documents prepared in an insurer's ordinary
course of business in investigating whether to accept or reject
coverage are discoverable (Brooklyn Union Gas Co. v American Home Assur. Co., 23 AD3d 190, 191 [2005]), there is no [*2]indication
that any such documents are being protected here. We have considered
plaintiff's remaining arguments and find unavailing.
Compare with 148 Magnolia, LLC v Merrimack Mut. Fire Ins. Co., 2009 NY Slip Op 03793 (App. Div., 1st, 2009)("Here the motion court properly
determined that the documents were not protected because appellant
failed to demonstrate that the investigation was conducted solely in
anticipation of litigation. Such reports of insurance investigators or
adjusters prepared during the processing of a claim are discoverable in
the regular course of the insurance company's business")
Singh v 244 W. 39th St. Realty, Inc., 2009 NY Slip Op 06826 (App. Div., 2nd, 2009)
To prevent substantial prejudice, the Supreme Court, in its
discretion, may grant leave to conduct additional discovery after the
filing of a note of issue and certificate of readiness where the moving
party demonstrates that "unusual or unanticipated circumstances"
developed subsequent to the filing requiring additional pretrial
proceedings (22 NYCRR 202.21[d]; see James v New York City Tr. Auth., 294 AD2d 471, 472; Audiovox Corp. v Benyamini, 265
AD2d 135, 140). Here, approximately nine months after the filing of the
note of issue, the plaintiff served a supplemental bill of particulars
and an expert report with worksheets alleging that the cost of his
future medical care would be approximately $8.9 million. This amount
was more than three times what had been alleged earlier. Under these
circumstances, the defendants demonstrated that "unusual or
unanticipated circumstances" developed subsequent to the filing of the
note of issue, justifying an additional deposition of the plaintiff
regarding his claim for future medical care (cf. Karakostas v Avis Rent A Car Sys., 306
AD2d 381, 382). Accordingly, that branch of the defendants' motion
which was for leave to conduct additional discovery of the plaintiff
with respect to his claim for future medical care should have been
granted.The defendants, however, failed to demonstrate that "unusual or
unanticipated circumstances" developed subsequent to the filing of the
note of issue with respect to surveillance videos [*2]of
the plaintiff or the plaintiff's claim for lost wages. The plaintiff's
supplemental bill of particulars claiming lost wages was served
approximately nine months prior to the filing of the note of issue and
one year and eight months prior to the defendants' motion, and the
plaintiff did not allege that the amount of his claim for lost wages,
as opposed to his claim for future medical care, had changed
dramatically (see Schenk v Maloney, 266 AD2d 199, 200; Frangella v Sussman, 254
AD2d 391, 392). Moreover, the defendants failed to explain why the
surveillance could not have been conducted earlier in the discovery
process (see Audiovox Corp. v Benyamini, 265 AD2d at 140).
Accordingly, those branches of the defendants' motion which were for
leave to conduct additional discovery of the plaintiff with respect to
the surveillance videos and his claim for lost wages were properly
denied.
Polygram Holding, Inc. v Cafaro, 2009 NY Slip Op 07165 (App. Div., 1st, 2009)
Order, Supreme Court, New York County (Eileen Bransten, J.), entered
April 29, 2009, which, to the extent appealed from as limited by the
briefs, limited the scope of an EBT granted to defendant and denied
defendant's motion to strike the note of issue, unanimously affirmed,
without costs.The court appropriately struck a discretionary balance in
granting defendant certain additional discovery consistent with our
prior discovery ruling in this matter (42 AD3d 339, 340-341), while
maintaining control of its trial calendar (Brooklyn Union Gas Co. v American Home Assur. Co., 23 AD3d 190 [2005]).
The bold, of course, is mine.
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