148 Magnolia, LLC v. Merrimack Mutual Fire Insurance Company

• Decision Date: 12 May 2009
• Docket Number: 552N.
• Citation: 2009 NY Slip Op 03793,878 N.Y.S.2d 727,62 A.D.3d 486
• Parties: 148 MAGNOLIA, LLC, et al., Plaintiffs, v. MERRIMACK MUTUAL FIRE INSURANCE COMPANY, Respondent, and PUBLIC CONTRACTING NYC, INC., Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

62 A.D.3d 486

878 N.Y.S.2d 727

2009 NY Slip Op 03793

148 MAGNOLIA, LLC, et al., Plaintiffs, v.MERRIMACK MUTUAL FIRE INSURANCE COMPANY, Respondent, and PUBLIC CONTRACTING NYC, INC., Appellant, et al., Defendants.

552N.

Appellate Division of the Supreme Court of New York, First Department.

May 12, 2009.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered July 23, 2008, which denied defendant-appellant Public Contracting NYC, Inc.'s motion for a protective order and to quash a subpoena served by defendant-respondent Merrimack Mutual Fire Insurance Company, unanimously affirmed, with costs.

The demanded documents consist of a file reflecting the results of an investigation performed by appellant's insurance carrier's agent regarding the underlying fire incident which resulted in the instant litigation.The burden of establishing any right to protection is on the party asserting it; the protection claimed must be narrowly construed; and its application must be consistent with the purposes of the underlying immunity (seeSpectrum Sys. Intl. Corp. v Chemical Bank,78 NY2d 371, 377[1991]).

A trial court is vested with broad discretion regarding discovery, and its determination will not be disturbed absent a demonstrated abuse of that discretion (seeThose Certain Underwriters at Lloyds, London v Occidental Gems, Inc.,41 AD3d 362, 364[2007], affd11 NY3d 843[2008];Brooklyn Union Gas Co. v American Home Assur. Co.,23 AD3d 190[2005]).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 (seeBrooklyn Union Gas Co.,23 AD3d at 190;...