Fiserve Solutions Inc. v. Xl Specialty Ins. Co..
| Decision Date | 05 May 2011 |
| Parties | FISERVE SOLUTIONS, INC., etc., et al., Plaintiffs–Respondents,v.XL SPECIALTY INSURANCE COMPANY., Defendant–Appellant.And another action. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERESteptoe & Johnson LLP., New York (Christopher T. Lutz of the bar of the District of Columbia admitted pro hac vice of counsel), for appellant.Reed Smith LLP., New York (Wendy H. Schwartz of counsel), for respondents.
Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered June 7, 2010, which denied defendant's motion to compel discovery, unanimously reversed, on the law and the facts, without costs and the motion granted. Appeal from order, same court and Justice, entered September 21, 2010, which denied defendant's motion for leave to renew, unanimously dismissed, without costs, as academic.
We find that defendant seeks not to engage in improper post-claim underwriting ( see Banks v. Paul Revere Life Ins. Co., 31 F.Supp.2d 82, 85 n. 5 [1998] ) but to determine the scope of coverage under the insurance policy. Thus, the disclosure defendant requested is material and necessary in the defense of this action (CPLR 3101).
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...if it can show that an insured lender did not comply with its own procedures and requirements ( see Fiserv Solutions, Inc. v. XL Specialty Ins. Co., 84 A.D.3d 480, 921 N.Y.S.2d 851 [2011] ).All concur except MAZZARELLI, J.P. and MOSKOWITZ, J. who dissent in a memorandum by MOSKOWITZ, J. as ......