Keenan v. Harbor View Health & Beauty Spa, Inc.

• Decision Date: 13 June 1994
• Citation: 205 A.D.2d 589,613 N.Y.S.2d 419
• Parties: Eleanor KEENAN, et al., Respondents, v. HARBOR VIEW HEALTH & BEAUTY SPA, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 419

613 N.Y.S.2d 419

205 A.D.2d 589

Eleanor KEENAN, et al., Respondents, v. HARBOR VIEW HEALTH & BEAUTY SPA, INC., Appellant.

Supreme Court, Appellate Division Second Department.

June 13, 1994.

Stephen M. Cohen, Lake Success (Eric M. Appel, of counsel), for appellant.

Adler & Gross, P.C., New York City (Gerry Wendrovsky, of counsel), for respondents.

Before BRACKEN, J.P., and MILLER, COPERTINO, SANTUCCI and ALTMAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the defendant appeals from stated portions of an order of the Supreme Court, Kings County (Huttner, J.), dated October 28, 1991, which, inter alia, granted the plaintiffs' motion to compel additional disclosure.

ORDERED that the order is affirmed insofar as appealed from, with costs; and it is further,

ORDERED that the defendant's time to provide additional disclosure is extended until 30 days after service upon it of a copy of this decision and order, with notice of entry.

The facts underlying this appeal are discussed in the memorandum of our dissenting colleague and need not be recited herein. It suffices to state that a trial court is possessed of broad discretion in supervising discovery (see, Dunsmore v. Paprin, 114 A.D.2d 836, 494 N.Y.S.2d 749). Pursuant to CPLR 3101(f), a party may obtain the contents of any insurance agreement. Moreover, a plaintiff has a right to disclosure of documentation that might lead to the discovery of admissible proof (see, Crazytown Furniture v. Brooklyn Union Gas Co., 150 A.D.2d 420, 541 N.Y.S.2d 30). In light of the dissolution of the corporate defendant, the fact that it had sold off all of its assets, and in light of the defendant's attorney's allegations that there was no liability coverage in place at the time of the accident, clearly the requested disclosure of insurance cancellation documentation was relevant to the very issue of whether this action would even be continued. The record established that the plaintiffs' discovery requests had, in the past, been met with resistance. The destruction of corporate records obviously had a great bearing on the defendant's ability to comply with these requests. However, the court's order that the defendant provide insurance information and any information relevant to the disposition of the dissolved corporation's assets, or affidavits as to the unavailability of the requested documentation, was not an improvident exercise of discretion. Obviously, the court was faced with a troublesome disclosure problem and it attempted to fashion a remedy that was responsive to the plaintiffs' needs while taking into account the defendant's alleged inability to produce certain documentation that had been destroyed. We do not view the Supreme Court's order as being unduly burdensome, superfluous, or lacking in specificity, and, accordingly, we affirm.

BRACKEN, J.P., and MILLER, SANTUCCI and ALTMAN, JJ., concur.

COPERTINO, Justice, dissents and votes to reverse the order insofar as appealed from, as a matter of discretion, to deny the plaintiffs' motion, and to grant so much of the defendant's motion as sought to strike further disclosure demands, with the following memorandum:

While I recognize that the Supreme Court has broad discretion in supervising disclosure (see, CPLR 3126; Dunsmore v. Paprin, 114 A.D.2d 836, 494 N.Y.S.2d 749), I must conclude that the court improvidently exercised its discretion in this case.

This action arose after the plaintiff Eleanor Keenan was allegedly injured in 1985 on premises owned by the defendant corporation. The record indicates that the Supreme Court issued a preliminary conference order on June 13, 1989, providing, inter alia, that plaintiffs be advised within 30 days if insurance coverage was not furnished. The order further directed the production of medical and hospital authorizations within 30 days.

In or about January 1990 the plaintiffs served a demand for discovery and inspection requesting disclosure, inter alia, of "[a] statement of all applicable policies of insurance, including, excess coverage, and policy limits had by defendant, and its agents, which may be liable to satisfy part or all of a judgment entered in the action regarding the occurrence which is stated in the complaint". Thereafter by motion returnable March 14, 1990, the plaintiffs moved to strike defendant's answer. It is not clear from the record what the basis of the motion was.

Counsel for the defendant then moved by motion returnable March 28, 1990, for permission to withdraw as counsel. In a supporting affirmation, counsel stated that he learned on March 8, 1990, that the defendant corporation had filed a certificate of dissolution in January 1989 that the real property which was the principal asset of the corporation had been sold, and that the defendant did not have liability insurance at the time of the accident. Thus, counsel found himself without a client or fees to continue representation. Counsel's motion to withdraw was denied on May 15, 1990, apparently due to the defendant's nonappearance on the return date.

Counsel for the defendant then filed an affirmation, apparently in opposition to the plaintiffs' motion to strike the defendant's answer, in which counsel indicated that he had obtained the cooperation of the defendant's former president, who agreed to appear for deposition on June 13, 1990. Counsel further indicated that he was attempting to cooperate with the plaintiffs in all respects, and requested that the plaintiffs' motion be adjourned to June 13, 1990, or that the court issue a conditional order permitting the defendant to comply with the preliminary conference order by appearing at the deposition scheduled for June 13, 1990. It is not clear from the record how the plaintiffs' motion to strike was resolved. However, counsel for the defendant indicated that the completion of the deposition on June 13, 1990, would render the plaintiffs' application moot.

At the deposition in June 1990 the president of the corporation stated that the corporate records, which had been stored in the basement of the premises, were destroyed in a fire which consumed the entire building. Counsel for the plaintiffs orally requested the production of "any documents maintained by counsel regarding the cancellation of insurance, the broker for obtaining insurance, and any information regarding the coverage status of insurance coverage at the time of this incident for [defendant]". Counsel also requested that "all insurance information regarding any insurance brokers dealt with by [defendant] be provided". Counsel for the defendant indicated at the deposition that defendant would provide the requested documentation to "[w]hatever extent it's available".

At the same deposition, the plaintiffs also requested authorizations for the release of any documents filed by the defendant with the State of New York regarding licensing by the New York State Department of Health or any other agencies, the defendant's corporate tax returns, and all corporate banking records as well as those of its president. Counsel for defendant agreed to take these requests "under advisement".

In a letter dated July 16, 1990, counsel for the plaintiffs requested that the defendant produce all of the above documents, as well as an authorization for the release...