Discovery of the claims file after the commencement of the action

Rickard v New York Cent. Mut. Fire Ins. Co., 2018 NY Slip Op 06333 [4th Dept. 2018]

During discovery, plaintiff served upon defendant a notice to produce its entire SUM claim file. Defendant, relying upon Lalka v ACA Ins. Co. (128 AD3d 1508 [4th Dept 2015]), responded by providing plaintiff with the contents of the claim file up until the date of commencement of this action. During a pretrial conference, defendant made an offer to resolve the matter. In a follow-up letter, plaintiff demanded that defendant provide the entire claim file, including those parts generated after commencement of this action. Defendant moved for a protective order and alternative relief, including an in camera review, plaintiff cross-moved to compel disclosure of the entire claim file, and defendant filed a second motion, seeking dismissal of the complaint, which is not relevant on appeal. Supreme Court, inter alia, denied defendant's motion for a protective order and granted plaintiff's cross motion in part by directing defendant to provide plaintiff with "any and all documents in the claim file pertaining to the payment or rejection of the subject claim including those prepared after the filing of this lawsuit up to the time the settlement offer was made . . . including reports prepared by Defendant's attorney(s)." Defendant appeals.

We note at the outset that defendant did not challenge plaintiff's notice to produce, which requested the entire claim file without designating any documents or categories of documents therein, on the ground that such request was palpably improper because it was overbroad or sought matter not "material and necessary" for the prosecution of plaintiff's action (CPLR 3101 [a]; see CPLR 3120 [1], [2]; see generally Battease v State of New York, 129 AD3d 1579, 1580 [4th Dept 2015]; Heimbach v State Farm Ins., 114 AD3d 1221, 1222 [4th Dept 2014]), and that defendant's motion for a protective order was based upon the assertion that any documents contained in the claim file after the date of commencement were materials protected from discovery. Thus, the sole issue on appeal is whether defendant met its burden of establishing that those parts of the claim file withheld from discovery contain material that is protected from discovery. We conclude that defendant did not meet that burden.

To the extent that Lalka (128 AD3d at 1508) holds that any documents in a claim file created after commencement of an action in a SUM case in which there has been no denial or disclaimer of coverage are per se protected from discovery, it should not be followed. Rather, a party seeking a protective order under any of the categories of protected materials in CPLR 3101 bears "the burden of establishing any right to protection" (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377 [1991]; see Heimbach, 114 AD3d at 1222). " [A] court is not required to accept a party's characterization of material as privileged or confidential' " (Optic Plus Enters., Ltd. v Bausch & Lomb Inc., 37 AD3d 1185, 1186 [4th Dept 2007]). Ultimately, "resolution of the issue whether a particular document is . . . protected is necessarily a fact-specific determination . . . , most often requiring in camera review' " (id., quoting Spectrum Sys. Intl. Corp., 78 NY2d at 378).

Here, we conclude that defendant failed to meet its burden inasmuch as it relied solely upon the conclusory characterizations of its counsel that those parts of the claim file withheld from discovery contain protected material. We nonetheless further conclude that, under the circumstances of this case, the court abused its discretion by ordering the production of allegedly protected documents and instead should have granted the alternative relief requested by defendant, i.e., allowing it to create a privilege log pursuant to CPLR 3122 (b) followed by an in camera review of the subject documents by the court (see Schindler v City of New York, 134 AD3d 1013, 1014-1015 [2d Dept 2015]; Baliva v State Farm Mut. Auto. Ins. Co., 275 AD2d 1030, 1031 [4th Dept 2000]). We therefore reverse the order insofar as appealed from, vacate the first and second ordering paragraphs, grant the motion for a protective order insofar as it seeks an in camera review, and remit the matter to Supreme Court to determine the motion and the cross motion following an in camera review of the allegedly protected documents.

The bold is mine.

CPLR R. 3212 Round Up

I've let these sit for too long.  These need to be posted, along with the 3211 cases, so that I can get to some of the more esoteric (probably not the right word) sections and rules.  Besides, I finally got a new computer, one that doesn't crash.  So I might as well put it to use.

CPLR R. 3212 Motion for summary judgment

CPLR R. 3214 Motions
heard by judge supervising disclosure; stay of disclosure

(b) Stay of disclosure: Service of a notice of motion under rule 3211, 3212, or section 3213 stays disclosure until determination of the motion unless the court orders otherwise. If the motion is based solely on the defense that the summons and complaint, summons with notice, or notice of petition and petition was not properly served, disclosure shall not be stayed unless the court orders otherwise.

Mazzocchi Wrecking Inc. v East 115th St. Realty Corp., 2010 NY Slip Op 01425 (App. Div., 1st, 2010)

Plaintiff's motion, based solely on the claim for breach of contract, was unsupported by an affidavit of a person with personal knowledge. The movant thus failed to meet its prima facie burden of proof, rendering the motion insufficient and lacking in probative value (Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, 31-32 [1979], affd 49 NY2d 924 [1980]).

Gonzalez v Nutech Auto Sales, 2010 NY Slip Op 00469 (App. Div., 2nd, 2010)

Under the circumstances of this case, since the motion was premature as no discovery had yet taken place (see CPLR 3212[f]; Harvey v Nealis, 61 AD3d 935; Valdivia v Consolidated Resistance Co. of Am., Inc., 54 AD3d 753), the Supreme Court erred in determining the motion on the merits.

Sutter v Wakefern Food Corp., 2010 NY Slip Op 00506 (App. Div., 2nd, 2010)

The plaintiff commenced this action against the defendant in 2002. In an amended order dated October 6, 2005, the Supreme Court denied the defendant's motion for summary judgment dismissing the complaint. In an order dated August 18, 2006, the Supreme Court denied the defendant's motion for leave to renew, on both a "procedural and substantive basis." In July 2008 the defendant again moved for summary judgment dismissing the complaint. The plaintiff then separately moved for the admission, pro hac vice, of Florida attorney Antoinette R. Appel to appear on her behalf as co-counsel in this action. The Supreme Court granted the defendant's motion and, in effect, denied the plaintiff's motion as academic.

Generally, successive motions for summary judgment should not be entertained, absent a showing of newly-discovered evidence or other sufficient cause (see Kimber Mfg., Inc. v Hanzus, 56 AD3d 615; Crane v JAB Realty, LLC, 48 AD3d 504; Williams v City of White Plains, 6 AD3d 609; Davidson Metals Corp. v Marlo Dev. Co., 262 AD2d 599). Here, the Supreme Court should not have [*2]entertained the defendant's latest motion for summary judgment dismissing the complaint since the defendant did not submit any newly-discovered evidence, or present other sufficient cause (see Kimber Mfg., Inc. v Hanzus, 56 AD3d 615; Selletti v Liotti, 45 AD3d 669; Williams v City of White Plains, 6 AD3d 609; Davidson Metals Corp. v Marlo Dev. Co., 262 AD2d 599).

Marcantonio v Picozzi, 2010 NY Slip Op 00822 (App. Div., 2nd, 2010)

Accordingly, the Supreme Court properly dismissed the complaint insofar as asserted against Picozzi and the law firm, thus rendering academic that branch of the plaintiffs' cross motion which was to compel those defendants to answer interrogatories. As to the defendants Project Real Estate, Inc., and John McHugh, their response to interrogatories was properly stayed pending determination of their motion for summary judgment (see CPLR 3214[b]).

Williams v D & J School Bus, Inc.
, 2010 NY Slip Op 00141 (App. Div., 2nd, 2010)

In opposition, the City defendants failed to raise a triable issue of fact as to whether the third-party defendants had any involvement in this matter, merely arguing that their motion was premature, and that a deposition of Scialpi was necessary. While determination of a summary judgment motion may be delayed to allow for further discovery where evidence necessary to oppose the motion is unavailable to the opponent (see CPLR 3212[f]), "[a] determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence" (Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614, 615; see Wyllie v District Attorney of County of Kings, 2 AD3d 714, 717). A party's mere hope that further discovery will reveal the existence of a triable issue of fact is insufficient to delay determination of the motion (see Wyllie v District Attorney of County of Kings, 2 AD3d at 717; Weltmann v RWP Group, 232 AD2d 550). Here, as the Supreme Court correctly held, the City defendants failed to provide an evidentiary basis for their assertion that further discovery would lead to additional relevant evidence (see Lambert v Bracco, 18 AD3d 619, 620).