Salazar v. Hartigan
| Decision Date | 04 April 2022 |
| Docket Number | INDEX 157483/2018 |
| Citation | 2022 NY Slip Op 31059 (U) |
| Parties | KRISTOFER SALAZAR, Plaintiff, v. PATRICK HARTIGAN, MACAO ENTERPRISES LLC D/B/A MACAO TRADING COMPANY, Defendants. MOTION SEQ. NO. 007 |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 007) 122-144, 147-155 were read on this motion for discovery.
By notice of motion, plaintiff moves pursuant to CPLR 3042 and 3126for an order striking defendants' answers or precluding them from presenting evidence at trial, or pursuant to CPLR 3124 compelling them to respond to his notice of discovery and inspection dated October 8, 2021. Defendant Macao Trading Company i/s/h/a Macao Enterprises LLC (Macao) opposes, as do third-party defendants.
By stipulation dated December 17, 2021, plaintiff agreed to withdraw the motion as against defendant Hartigan only. (NYSCEF 154).
Plaintiff contends that Macao failed to provide any discovery in response to his demands, whereby he sought, among other things, insurance documents pertaining to the underlying litigation. He also claims that third-party defendants failed to respond entirely, despite his repeated attempts.
In opposition, Macao contends that it responsed to plaintiffs demands on October 12, 2021, although it declined to provide documents which had been previously provided, for which it asserted privilege, or that it did not possess. It argues that plaintiff accepted its discovery responses without objection until now, and that he cites no specific objections to its responses.
Third-party defendants assert that as the notice of motion fails to specify that plaintiff seeks relief from them, the motion should be denied as to them, and that plaintiffs affirmation of good faith is insufficient as to them. Even if the motion were proper, they argue, plaintiffs demands are vague, seek materials not in their possession or control, are improper and irrelevant, or are privileged. Any failure to comply with plaintiffs demands, they maintain, is neither willful nor contumacious.
In reply, plaintiff argues that insurance files are discoverable, and are not privileged even if prepared in anticipation of litigation. He contends that the court may consider relief against third-party defendants which does not significantly differ from that sought in the notice of motion and should do so in the interests of judicial economy.
While a court may grant relief that is not specified in a notice of motion that is "warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party" (Trazzera v Trazzera, 199 A.D.3d 855 [2d Dept 2021], quoting Frankel v Stavsky, 40 A.D.3d 918, 918-919 [2d Dept 2007]), as plaintiff fails to state in his notice of motion, or in his accompanying papers, that he seeks relief from third-party defendants, and does so for the first time in its his reply papers, it is not considered. (CPLR 2214[a]; see e.g. DaimlerChrysler Ins. Co. v Seek, 82 A.D.3d 581 [1st Dept 2011] []; Arriaga v Michael Laub Co., 233 A.D.2d 244 [1st Dept 1996] []).
Pursuant to CPLR 3101(a), "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action . . ." What is "material and necessary" is generally left to the court's sound discretion and may include "any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity." (Andon ex rel. Andon v 302-304 Mott St. Assocs., 94 N.Y.2d 740, 746 [2000], quoting Allen v Crow ell-Collier Pub. Co., 21 N.Y.2d 403, 406 [1968]).
There are three categories of protected materials in the CPLR: attorney-client communications, attorney work product, and trial preparation materials. (CPLR 3101 [b], [c], [d]; Spectrum Sys. Intl. Corp. v Chem. Bank, 78 N.Y.2d 371, 376-77 [1991]). "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 underlying the immunity." (Id.).
"Reports of insurance investigators or adjusters, prepared during the processing of a claim, are discoverable as made in the regular course of the insurance company's business." (Brooklyn Union Gas Co. v Am. Home Assur. Co., 23 A.D.3d 190 [1st Dept 2005]). "Furthermore, attorney work product applies only to documents prepared by counsel acting as such, and to materials uniquely the product of a lawyer's learning and professional skills, such as those reflecting an attorney's legal research, analysis, conclusions, legal theory or strategy." (Id. at 190-191). (Id. at 191 [internal quotation marks omitted]; Venture v Preferred Mut. Ins. Co., 153 A.D.3d 1155 [1st Dept 2017]; Ntl. Union Fire Ins. Co. of Pittsburgh, Pennsylvania v TransCanada Energy USA, Inc., 119 A.D.3d 492, 493 [1st Dept 2014], Iv. dismissed 24 N.Y.3d 990 [2014]).
Here Macao conclusorily labels as privileged the insurance documents sought by plaintiff, thereby failing to meet its burden. (See Ligoure v City of New York, 128 A.D.3d 1027 [2d Dept 2015] []; New York Schools Ins. Reciprocal v Milburn Sales Co., Inc., 105 A.D.3d 716 [2d Dept 2013] [same]; Agovino v Taco Bell 5083, 225 A.D.2d 569 [2d Dept 1996] [...
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