Category: CPLR § 3101

No CPLR § 3101(d) notice required for plaintiff’s treating physician

CPLR § 3101(d) Trial Preparation (2) Materials

Soriano v Inoa, 2010 NY Slip Op 03843 (App. Div., 1st, 2010)

It is unclear from the trial record whether Dr. Gutstein was an expert
witness as to whom CPLR 3101(d) notice was required, or plaintiff's
treating physician, as to whom no notice was required (see e.g. Breen
v Laric Entertainment Corp., 1 AD3d 298, 299-300 [2003]). Moreover,
it is clear that the prejudice to defendants arose from the lack of
proper authorizations for medical records and not from the report
annexed to plaintiff's expert notice. 

Accordingly, Gutstein's testimony as to causation should not have
been precluded on the ground of plaintiff's late service of the notice.

For more information, a lot more information, on this case, head over to Hochfelder's New York Injury Cases Blog.

CPLR 3101(a)(4) Non-Party disclosure

CPLR § 3101 Scope of disclosure

(a)
Generally.
There shall be full disclosure of all matter material and necessary in
the prosecution or defense of an action, regardless of the burden of
proof, by:

(4) any other person, upon notice
stating the circumstances or reasons such disclosure is sought or
required.

Kondratick v Orthodox Church in Am., 2010 NY Slip Op 03877 (App. Div., 2nd, 2010)

Although the general rule is that there shall be "full disclosure of all
matter material and necessary in the prosecution . . . of an action"
(CPLR 3101[a]; see Auerbach v Klein, 30 AD3d 451), nevertheless,
"unlimited disclosure is not permitted" (Silcox v City of New York, 233
AD2d 494). A party seeking disclosure from a nonparty witness, in
addition to demonstrating that the disclosure sought is material and
necessary, must also set forth circumstances or reasons why disclosure
is sought or required from a nonparty (see CPLR 3101[a][4]; Tenore
v Tenore, 45 AD3d 571, 571-572). Here, the Orthodox Church in
America (hereinafter the appellant) satisfied this requirement. In light
of the claims made by the plaintiff in Action No. 1, the information
sought in the subpoenas by the appellant is relevant, material, and [*2]necessary, and unavailable through other
means. Accordingly, the Supreme Court should have denied the motion to
quash the subpoenas (see Tenore v Tenore, 45 AD3d at 571-572; Thorson
v New York City Tr. Auth., 305 AD2d 666; Maxwell v Snapper,
Inc., 249 AD2d 374).

I forgot to post this old subpoena decision, but it reminded me to post two recent decisions

Hart v Kinney Drugs, Inc., 67 AD3d 1154 (App. Div., 3rd, 2009)

In 2007, after relations between the parties had deteriorated and the tenant brought an action against two of the landlords' principals, the landlords commenced this action alleging that, among other things, the tenant had breached the parties' agreements by failing to pay percentage rents for the three stores. The tenant answered that the memorandum had terminated its obligation to pay percentage rents for those stores and served a subpoena for the records of the landlords' bank. When the landlords moved to quash the subpoena, the tenant cross-moved for summary judgment dismissing the cause of action.

Finding the memorandum to be ambiguous as to whether the tenant was obligated to pay percentage rents for the three stores, Supreme Court denied the tenant's cross motion and partially denied the landlords' motion to quash by greatly narrowing the scope of the tenant's subpoena. The landlords then moved to renew the motion to quash the subpoena in its entirety and attempted to present a further "Global Lease Agreement" in support of its position. That motion also was denied. The landlords now appeal from Supreme Court's orders, contending that the memorandum is not ambiguous since it is silent as to percentage rents for the three stores and, therefore, the lease terms regarding percentage rents remain unchanged. The landlords argue that, in the absence of any ambiguity, the information sought by the tenant's subpoena is extrinsic evidence that cannot be considered in construing the memorandum.

There can be no real dispute that the tenant's subpoena seeks extrinsic evidence. Inasmuch as extrinsic evidence of the parties' intent may be considered only if their agreement is ambiguous (see Greenfield v Philles Records, 98 NY2d 562, 569 [2002]; R/S Assoc. v New York Job Dev. Auth., 98 NY2d 29, 33 [2002]), the landlords' motion to quash necessarily depends upon whether the memorandum is ambiguous. It is well settled that "[w]hether or not a writing is ambiguous is a question of law to be resolved by the courts" (W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). In addition, while "silence does not equate to contractual ambiguity" (Greenfield v Philles Records, 98 NY2d at 573; see Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001]), an omission as to a material issue can create an ambiguity and allow the use of extrinsic evidence where the context within the document's four corners suggests that the parties intended a result not expressly stated (see Louis Dreyfus Energy Corp. v MG Ref. & Mktg., Inc., 2 NY3d 495, 500 [2004]; Barrow v Lawrence United Corp., 146 AD2d 15, 18-19 [1989]).

***

Inasmuch as the memorandum can be read as providing either a new, increased single rent term that replaced the prior base and percentage rents for the three stores, as the tenant claims, or new, increased base rents in addition to the existing percentage rents, as the landlords claim, it is ambiguous. In view of the questions raised by the memorandum's inconsistent treatment of these two groups of stores, unexplained within its four corners, Supreme Court properly determined that extrinsic evidence is needed to determine the parties' intent in executing it (see Louis Dreyfus Energy Corp. v MG Ref. & Mktg., Inc., 2 NY3d at 500; Belknap v Witter & Co., 61 NY2d 802, 804 [1984], affg 92 AD2d 515 [1983]; State of New York v Industrial Site Servs., Inc., 52 AD3d 1153, 1156 [2008]; Barrow v Lawrence United Corp., 146 AD2d at 18).

Given that ruling, Supreme Court also did not abuse its discretion in permitting disclosure of the landlords' records held by a nonparty to the extent that they could reveal the parties' intent in executing the memorandum. The tenant sufficiently demonstrated that the information which it sought was material and necessary. Further, the court carefully limited the scope of disclosure to shield confidential financial information, making it unnecessary for the tenant to show that the information is indispensable (see generally Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406-407 [1968]; Jordan v Blue Circle Atl., 296 AD2d 752, 752-753 [2002]; cf. Saratoga Harness Racing v Roemer, 274 AD2d 887, 889 [2000]).

Finally, in light of the landlords' failure to adequately explain the omission of the Global Lease Agreement from their submission on the parties' initial motions, Supreme Court did not abuse its discretion by denying the motion to renew (see Matter of Mouawad, 61 AD3d 1169, 1169-1170 [2009]; Kahn v Levy, 52 AD3d 928, 929 [2008]).

Almost on topic is a more recent decision: Gitlin v Chirinkin, 2010 NY Slip Op 01920 (App. Div., 2nd, 2010)

The Supreme Court did not improvidently exercise its discretion in denying that branch of the appellants' motion which was to compel the plaintiff to disclose his tax returns and bank records. The appellants failed to demonstrate that any information in the tax returns was indispensable to their defense or counterclaim and could not be obtained from other sources (see Pugliese v Mondello, 57 AD3d 637; Latture v Smith, 304 AD2d 534, 536; see also Banigan v Hill, 57 AD3d 463; Benfeld v Fleming Props., LLC, 44 AD3d 599). Moreover, the appellants failed to demonstrate that the plaintiff's bank records were material and necessary to their defense or counterclaim (see CPLR 3101[a]; Auerbach v Klein, 30 AD3d 451).

The plaintiff sustained his burden of demonstrating that the appellants should be required to disclose their tax returns (see Kerman v Martin Friedman, C.P.A., P.C., 21 AD3d 997). In addition, the plaintiff also clearly demonstrated that the bank records he requested of the appellants were material and necessary to the pursuit of his claims that the defendants had defrauded him. Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the appellants' motion which was for a protective order pursuant to CPLR 3103.

Tangentially related is Riccuiti v Consumer Prod. Servs., LLC, 2010 NY Slip Op 01947 (App. Div., 2nd, 2010)

Thereafter, the plaintiff moved, inter alia, for summary judgment on the issue of liability and pursuant to CPLR 3126 to strike the answer insofar as asserted on behalf of Kowalski, based upon Kowalski's failure to appear for a court-ordered deposition.

***

"Although actions should be resolved on the merits whenever possible, where the conduct of th
e resisting party is shown to be willful and contumacious, the striking of a pleading is warranted" (Savin v Brooklyn Mar. Park. Dev. Corp., 61 AD3d 954, 954). Here, the Supreme Court providently exercised its discretion in striking the answer insofar as asserted on behalf of Kowalski. The record reflects that the answer was interposed on behalf of both defendants, and that Kowalski did not raise any defenses based upon lack of personal jurisdiction. In opposition to that branch of the plaintiff's motion which was to strike the answer insofar as asserted on behalf of Kowalski, defense counsel represented that his office was unable to locate Kowalski and, therefore, could not produce him for a deposition. The mere fact that Kowalski may have been outside the State of New York, and had made himself unavailable, did not preclude the Supreme Court from striking the answer [*2]insofar as interposed by him for failure to appear at a court-ordered deposition (see Carabello v Luna, 49 AD3d 679, 680; Maignan v Nahar, 37 AD3d 557).

The bold is mine.

Informal Judicial Admissions and 3101(d)

Normally this would go on the evidence blog, but I rarely post over there and am considering just killing the damn thing, so I'm posting it here.  In fact, it's been sitting around since December, waiting to be posted.


Ocampo v Pagan, 68 AD3d 1077 (App. Div., 2nd, 2009)

The court improvidently exercised its discretion in precluding the
testimony of the
defendants' expert witness in the area of radiology. "CPLR 3101 (d) (1)
(i) does not require a
party to respond to a demand for expert witness information 'at any
specific time, nor does it
mandate that a party be precluded from proffering expert testimony
merely because of
noncompliance with the statute,' unless there is evidence of intentional
or willful failure to
disclose and a showing of prejudice by the opposing party" (Hernandez-Vega
v
Zwanger-Pesiri Radiology Group, 39 AD3d 710, 710-711 [2007], quoting
Aversa v
Taubes, 194 AD2d 580, 582 [1993]; see Rowan v Cross County Ski
& Skate, Inc.,
42 AD3d 563, 564 [2007]).

While a trial court "has the discretion to preclude expert
testimony for the failure to
reasonably comply with the statute" (Lucian v Schwartz, 55 AD3d
687, 688 [2008]),
there was no finding [*2]here of failure to
comply, reasonably or
otherwise, with the statute. This is not a situation in which the
defendants failed to demonstrate
good cause for failing to disclose expert information regarding expert
witnesses until the eve of
trial (cf. Martin v NYRAC, Inc., 258 AD2d 443 [1999]). Rather,
the defendants
produced an affidavit of service showing that the required notice
pursuant to CPLR 3101 (d) was
timely served (see CPLR 2103 [b] [2]). The court here merely
found that the plaintiff's
explanation raised a question of fact as to whether the plaintiff had
actually received the notice,
specifically declining to place blame on either party for the "totality
of . . .
circumstances" underlying the claim of the plaintiff's counsel that he
was unaware of the
existence of the first expert witness disclosure until right before the
start of the trial. Where there
is no evidence of intentional or willful failure to disclose, "any
potential prejudice to the
plaintiffs [may be] eliminated by an adjournment of the trial" (Rowan
v Cross County Ski &
Skate, Inc., 42 AD3d at 564; see Shopsin v Siben & Siben, 289
AD2d 220, 221
[2001]). By precluding the expert's testimony to avoid prejudicing the
plaintiff, instead of simply
adjourning the trial to avoid prejudice to either party, the court, in
effect, penalized the
defendants, although there was no evidence of wrongdoing on their part (see
Rowan v Cross
County Ski & Skate, Inc., 42 AD3d at 564; Shopsin v Siben
& Siben, 289 AD2d at
221). Contrary to the plaintiff's contention, the error was not
harmless.

Moreover, the Supreme Court improvidently exercised its
discretion in limiting the scope of
the defendants' cross-examination of the plaintiff by precluding the use
of pleadings, bills of
particulars, and sworn testimony given at a hearing pursuant to General
Municipal Law §
50-h in subsequent lawsuits, and in precluding the introduction such
documents into evidence.

Statements contained in a verified complaint, or " 'made by a
party as a witness, or contained
in a deposition, a bill of particulars, or an affidavit' " constitute
informal judicial admissions
(Matter of Union Indem. Ins. Co. of N.Y., 89 NY2d 94, 103 [1996],
quoting Prince,
Richardson on Evidence § 8-219, at 529 [Farrell 11th ed]; see Gomez v
City of New
York, 215 AD2d 353, 354 [1995]). As such, "they are generally
admissible pursuant to an
exception to the hearsay rule" (Payne v New Hyde Park Dodge, 163
AD2d 285, 286
[1990]). While not conclusive, they are "evidence of the fact or facts
admitted" (Prince,
Richardson on Evidence § 8-219, at 530 [Farrell 11th ed]; see Matter
of Union Indem.
Ins. Co. of N.Y., 89 NY2d at 103; Gomez v City of New York, 215
AD2d at 354;
Payne v New Hyde Park Dodge, 163 AD2d at 286). Where statements
in the pleadings
or the bill of particulars, or in depositions or hearings from other
judicial proceedings are
inconsistent with the trial testimony of a witness, they are also
admissible to impeach the
credibility of that witness (see Somir v Weiss, 271 AD2d 433
[2000]). Here,
cross-examination testimony of the plaintiff regarding allegations in
her pleadings and bill of
particulars from a subsequent action arising out of a trip and fall, and
parts of her testimony,
given at a hearing pursuant to General Municipal Law § 50-h in
connection with a
subsequent medical malpractice action, were admissible on the issue of
the truth of the facts
stated, both as prior inconsistent statements impeaching the plaintiff's
credibility, and as informal
judicial admissions. While prior accidents or lawsuits may not be
explored where the purpose is
to "induce the inference of negligence or demonstrate that the plaintiff
is litigious and therefore
unworthy of belief" (Molinari v Conforti & Eisele, 54 AD2d
1113, 1114 [1976]), "it is
open to one charged with having caused an injury to inquire into whether
the claimant had
sustained, or had claimed to have sustained, the same injury in
circumstances unrelated to those
at bar" (Bowers v Johnson, 26 AD2d 552 [1966]).

The trial court's conduct, including, inter alia, its excessive
intervention into the trial
proceedings, warrants remittal to the Supreme Court for a new trial
before a different Justice
(see Pickering v Lehrer, McGovern, Bovis, Inc., 25 AD3d 677, 679
[2006]; see also
Schaffer v Kurpis, 177 AD2d 379 [1991]; Testa v Federated Dept.
Stores, Abraham &
Straus Div., 118 AD2d 696, 697 [1986]).

The bold and underscore are mine.

Post Note of Issue Discovery and Privilege, but not in that order

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.

CPLR § 3101(d) Experts and Weight

CPLR § 3101(d)

Board of Mgrs. of the 195 Hudson St. Condominium v 195 Hudson St. Assoc., LLC, 2009 NY Slip Op 04950 (App. Div., 1st, 2009)

While the "qualification of an expert witness is within the court's
sound discretion, and its determination will not be disturbed in the
absence of serious mistake, an error of law or abuse of discretion" (People v Jones, 171 AD2d 609, 610 [1991], lv denied 77 NY2d 996 [1991]), this expert should not have been precluded from testifying as to future cost estimates (see generally Issacs v Incentive Sys.,
52 AD2d 550 [1976]). Licensed professionals acting as experts have been
found qualified to give their opinions regarding future or estimated
costs (see Matter of City of Troy v Town of Pittstown, 306 AD2d 718, 719 [2003], lv denied 1 NY3d 505 [2003]), and this witness's education, training and experience qualified him to testify as an expert in connection [*2]with
estimating costs. The computer database utilized by plaintiff's expert
to prepare pre-bid cost estimates was based on the same methodology
employed in connection with the completed remediation work —
specifications and bids of hundreds of prior projects on which the
expert had worked. Furthermore, "any alleged lack of knowledge in a
particular area of expertise goes to the weight and not the
admissibility of the testimony," and could have been cured with a
limiting instruction to the jury (see Moon Ok Kwon v Martin, 19 AD3d 664 [2005]).

K & J/Gonzalez's argument that it is entitled to set off
against the $2,059,692.09 jury verdict the $1,960,000 received from the
settling codefendants is unsupported by the record (see e.g. Promenade v Schindler El. Corp., 39 AD3d 221, 222-223 [2007], lv dismissed
9 NY3d 839 [2007]). Based on the explicit language of the second
amended complaint, the verdict sheet and the settling agreements, there
is no basis for concluding that the jury allocated damages to these
defendants based on the same claims or injuries by which plaintiff had
entered into its agreements with the settling codefendants. Plaintiff's
Amended CPLR 3101(d) Expert Disclosure clearly indicated that this
expert's testimony would address construction defects caused by K &
J and the "costs to remedy" those defects.

The bold is mine.

“At issue” waiver of privilege

CPLR § 3101(c)  Attorney's work product. The work product of an attorney shall not be obtainable.

CPLR § 3101(d) Trial Preparation (2) Materials

Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 2009 NY Slip Op 04099 (App. Div., 1st, 2009)

We find no merit to defendant's argument that privileged materials
relating to and created after commencement of the Doctor's Hospital
Action have been put "in issue" by this litigation and are therefore
discoverable. Such argument fails to recognize that nothing that
plaintiff's attorneys could have said or done in the prior lawsuit
could have possibly affected plaintiff's reliance on defendant's
allegedly erroneous advice given years earlier in connection with the [*2]formation
of the D5 Trust. " At issue' waiver of [the attorney-client] privilege
occurs where a party affirmatively places the subject matter of its own
privileged communication at issue in litigation, so that invasion of
the privilege is required to determine the validity of a claim or
defense of the party asserting the privilege, and application of the
privilege would deprive the adversary of vital information" (Deutsche Bank Trust Co. of Ams. v Tri-Links Inv. Trust, 43 AD3d 56,
63 [2007]). While any communications between plaintiff and its
attorneys in the Doctor's Hospital Action that evaluated defendant's
prior advice in the allegedly bungled D5 Trust transaction are
certainly relevant to the issue of defendant's alleged malpractice,
plaintiff disavows any intention to use such communications and
defendant fails to show that any such communications are necessary to
either plaintiff's claim or its defense (see id. at 64 [relevance alone insufficient to put privileged materials "at issue"; "if that were the case, a
privilege would have little effect"]; see also Veras Inv. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370,
374 [2008]). Nor does the question of the reasonableness of the
settlement amount that plaintiff seeks to recover, without more, put
plaintiff's privileged communications with its attorneys concerning the
settlement "in issue" (Deutsche Bank, 43 AD3d at 57). No reason
appears why the reasonableness of the settlement cannot be determined
with the copious materials that defendant has already received,
including otherwise privileged communications, dating from before the
commencement of the Doctor's Hospital Action. We have considered
defendant's other arguments and find them unpersuasive.

The bold is mine.

CPLR § 3101(d)

CPLR § 3101 Scope of disclosure

(d) Trial preparation

Hernandez v Vavra, 2009 NY Slip Op 04161 (App. Div., 1st, 2009)

In light of the inconsistency between the information contained on the
face of defendants' CPLR 3101(d) notice pertaining to their expert
neuropsychologist, and the substance of the expert's proposed testimony
as clarified on voir dire, the trial court providently exercised its
discretion in permitting the neuropsychologist to testify as to the
results of his interview of plaintiff, while precluding him from
testifying as to the results of neuropsychological tests he performed
on plaintiff (see Inwood Sec. Alarm, Inc. v 606 Rest., Inc., 35 AD3d 194 [2006]).

CPLR § 3101(c) & (d) EUO Reports and Privilege

CPLR § 3101(c)  Attorney's work product. The work product of an attorney shall not be obtainable.

CPLR § 3101(d) Trial Preparation (2) Materials

I have this post on my other blog, and don't feel like copying and pasting it.  Head over there to check it out.  Ok fine, here is some of it:

Tomorrow's NYLJ has an interesting article from Evan H. Krinick (of LMK fame), a partner at Rivkin Radler.
Insurance Fraud: Examinations Under Oath And Attorney-Client Privilege,
discusses the circumstances swhere EUO reports prepared by counsel will
be privileged and not discoverable.

and all the way to the bottom.

Under this analysis, it looks like SIU
reports, memos, files, emails, etc. are fair game. For more information
on this issue (not SIU, privilege in general), have a look at People v. Kozlowski, 2008 NY Slip Op 07759, (Ct. App., 2008), and a recent article in the NYLJ that discusses the Kozlowski case (also available in part HERE). For other cases that have addressed the privilege issue recently, click HERE.

Yup, no middle here, to see the middle, go over to the other blog. 

CPLR § 3101(a)(4)

CPLR § 3101 Scope of disclosure

(a) Generally.
There shall be full disclosure of all matter material and necessary in
the prosecution or defense of an action, regardless of the burden of
proof, by:

(4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required.

Heaney v Hospital for Special Surgery, 2009 NY Slip Op 50748(U) (App. Term, 1st, 2009)

The motion court providently exercised its discretion in granting
defendant's motion to quash a subpoena and notice of deposition served
by plaintiffs upon an out-of-state nonparty witness, where plaintiffs
failed to show that further examination of the witness, who had already
been extensively deposed by plaintiffs, was likely to be productive (see CPLR
3101[a][4]). Plaintiffs' spoliation argument, even if timely raised and
properly considered, must be rejected on the merits since there was no
showing that defendants destroyed the requested documents (see Squitieri v City of New York, 248 AD2d 201, 202 [1998]; Kirkland v New York City Hous. Auth., 236 AD2d 170, 173 [1997]) or that plaintiffs were unable to prove their claims without the missing documents (see Ingoglia v Barnes & Noble College Booksellers, Inc., 48 AD3d 636, 637 [2008]; Amaris v Sharp Elec. Corp., 304 AD2d 457 [2003]).

The bold is mine.