Tower Insurance Company of New York v. Murello, 2008-06544

• Decision Date: 15 December 2009
• Docket Number: 2008-06544,2009-00114
• Citation: 2009 NY Slip Op 9461,68 A.D.3d 977,889 N.Y.S.2d 852
• Parties: TOWER INSURANCE COMPANY OF NEW YORK, as Subrogee of Natalie Soleymanzadeh, Respondent, et al., Plaintiffs, v. ROBERT MURELLO, Doing Business as ROBERT MURELLO ELECTRICAL CONTRACTING CO., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

68 A.D.3d 977

2009 NY Slip Op 9461

889 N.Y.S.2d 852

TOWER INSURANCE COMPANY OF NEW YORK, as Subrogee of Natalie Soleymanzadeh, Respondent, et al., Plaintiffs, v. ROBERT MURELLO, Doing Business as ROBERT MURELLO ELECTRICAL CONTRACTING CO., et al., Appellants.

2008-06544

2009-00114

Appellate Division of the Supreme Court of New York, Second Department.

Decided December 15, 2009.

In a subrogation action to recover amounts paid by the plaintiff to its insured for injury to property, the defendants appeal from an order of the Supreme Court, Nassau County (Mahon, J.), entered April 9, 2009, which denied their motion to compel the plaintiff Tower Insurance Company of New York to comply with a demand for discovery and inspection.

Ordered that the order is affirmed, with costs.

CPLR 3101 (a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution . . . of an action." "The phrase `material and necessary' should be `interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason'" (Auerbach v Klein, 30 AD3d 451, 452 [2006], quoting Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). Nevertheless, "unlimited disclosure is not permitted" (Silcox v City of New York, 233 AD2d 494 [1996]). Thus, as a matter of discretion (see Young v Tierney, 271 AD2d 603 [2000]), the court may issue a protective order where a discovery demand seeks privileged or irrelevant material (see Holness v Chrysler Corp., 220 AD2d 721, 722 [1995]). In this case, the plaintiff met its burden of demonstrating that the demanded documents were privileged "by virtue of being material prepared in anticipation of litigation" (Marten v Eden Park Health Servs., 250 AD2d 44, 47 [1998]; Landmark Ins. Co. v Beau Rivage Rest., 121 AD2d 98 [1986]).

SKELOS, J.P., FLORIO, BALKIN, BELEN and AUSTIN, JJ., concur.