Occidental Chemical Corp. v. Hartford Acc. and Indem. Co.
| Citation | 184 A.D.2d 1038,584 N.Y.S.2d 247 |
| Parties | OCCIDENTAL CHEMICAL CORPORATION, Occidental Petroleum Corporation, Occidental Petroleum Investment Co., Occidental Chemical Holding Corporation, Oxy Chemical Corporation and Occidental Petroleum International, Inc., Appellants, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, et al., Respondents. |
| Decision Date | 05 June 1992 |
| Court | New York Supreme Court Appellate Division |
Phillips, Nizer, Benjamin, Krim & Ballon by George Berger, New York City, for appellants.
Newman & Bower, P.C. by Thomas Newman, New York City, for respondents.
Before GREEN, J.P., and PINE, BOEHM, FALLON and DAVIS, JJ.
Supreme Court improperly denied plaintiffs' motion seeking an order pursuant to CPLR 3104(d) to set aside the determination of the Discovery Referee insofar as it directed plaintiffs "to produce privileged material gathered and prepared by their counsel in the defense of the underlying actions [commenced against them] relevant [to] the issues of liability and damages". Those actions seek recovery for personal injury and property damage arising from chemical contamination at Love Canal and other sites on the Niagara Frontier. The record shows that the parties expressly agreed that plaintiffs reserved their rights to assert the attorney-client privilege (see, CPLR 3101[b]; 4503[a]), to invoke the work-product immunity under CPLR 3101(c), and to invoke the immunity from production afforded to materials prepared for litigation under CPLR 3101(d)(2). In light of the parties' contentions, unless an exception to the privileges set forth in CPLR 3101(b), (c) and (d)(2) applies, the material that defendants now seek is privileged or otherwise not discoverable (see, Manufacturers & Traders Trust Co. v. Servotronics, Inc., 132 A.D.2d 392, 522 N.Y.S.2d 999). Therefore, it was necessary for the court to determine whether plaintiffs had properly asserted those privileges regarding disclosure of the unidentified material that their attorneys generated in the underlying actions. That it failed to do (see, American Reliance Ins. Co. v. National Gen. Ins. Co., 174 A.D.2d 591, 593, 571 N.Y.S.2d 493).
Furthermore, under the circumstances of this case, plaintiffs did not waive the right to assert the attorney-client privilege under the issue injection theory by suing for indemnity on the insurance policies that defendants issued to them (see, Jakobleff v. Cerrato, Sweeney & Cohn, 97 A.D.2d 834, 835, 468 N.Y.S.2d 895). Additionally, upon...
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