Sprague v. International Business Machines Corp.

• Decision Date: 25 November 1985
• Citation: 114 A.D.2d 1025,495 N.Y.S.2d 462
• Parties: Robert SPRAGUE, Plaintiff, v. INTERNATIONAL BUSINESS MACHINES CORP., Defendant Third-Party Plaintiff-Respondent, et al., Defendant; Orange County Insulation Corp., Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 462

495 N.Y.S.2d 462

114 A.D.2d 1025

Robert SPRAGUE, Plaintiff, v. INTERNATIONAL BUSINESS MACHINES CORP., Defendant Third-Party Plaintiff-Respondent, et al., Defendant Orange County Insulation Corp., Third-Party Defendant-Appellant.

Supreme Court, Appellate Division Second Department.

Nov. 25, 1985.

Mead, Dore & Voute, P.C., White Plains (Elliot A. Cristantello, of counsel), for appellant.

Dupee, Madison & Hoover, Goshen (James R. McCarl, of counsel), for respondent.

Before MOLLEN, P.J., and BROWN, NIEHOFF and EIBER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, third-party defendant Orange County Insulation Corp. appeals from an order of the Supreme Court, Westchester County (Ruskin, J.), entered January 23, 1985, which granted defendant third-party plaintiff International Business Machines Corp.'s motion to compel further responses to a notice for discovery and inspection.

Order reversed, with costs, and motion denied.

As noted by Special Term, the failure to make a timely motion for a protective order forecloses inquiry into the propriety of a notice for discovery and inspection and the information sought to be discovered thereunder except as to requests which are palpably improper or as to privileged matter (CPLR 3101, 3122; Cipriano v. Righter, 100 A.D.2d 923, 474 N.Y.S.2d 839). This case falls within the exception to that rule and, accordingly, we reverse.

The Workers' Compensation carrier's claim file for the plaintiff in the underlying action, is, in fact, the file of the liability insurer for purposes of defendant third-party plaintiff's claim for contribution and/or indemnification against the third-party defendant. It is well established that the file of a liability insurer in an accident case, as well as reports prepared by an insured for his liability insurer, fall within the scope of the conditional exemption from disclosure afforded material prepared for litigation (CPLR 3101 Vernet v. Gilbert, 90 A.D.2d 846, 456 N.Y.S.2d 93; Kandel v. Tocher, 22 A.D.2d 513, 256 N.Y.S.2d 898). Defendant third-party plaintiff has not shown that the material therein cannot be duplicated and that withholding it may result in injustice or undue hardship (CPLR 3101 Volpicelli v. Westchester County, 102 A.D.2d 853, 476 N.Y.S.2d 623). Moreover, the request for the entire file, without specifying the nature of the particular documents sought, was overly broad (see, Park Knoll Assoc. v. Schmidt, 99 A.D.2d...