Waugh v. Firemen's Fund Ins. Co.

• Decision Date: 19 November 1966
• Citation: 52 Misc.2d 141,275 N.Y.S.2d 91
• Parties: Arthur WAUGH, as Attorney-in-Fact for C. Leonard Lapadula, Plaintiff, v. FIREMEN'S FUND INSURANCE COMPANY, and Stetter & Levy, Esqs., a partnership ofWilliam A. Stetter and Alan C. Levy, Defendants. STETTER & LEVY, ESQS., a partnership of William A. Stetter and Alan C. Levy, Third-Party Plaintiffs v. CONTINENTAL CASUALTY COMPANY, Third-Party Defendant.
• Court: New York Supreme Court

Page 91

275 N.Y.S.2d 91

52 Misc.2d 141

Arthur WAUGH, as Attorney-in-Fact for C. Leonard Lapadula, Plaintiff, v. FIREMEN'S FUND INSURANCE COMPANY, and Stetter & Levy, Esqs.,

a partnership ofWilliam A. Stetter and Alan C.

Levy, Defendants.

STETTER & LEVY, ESQS., a partnership of William A. Stetter and Alan C. Levy, Third-Party Plaintiffs v. CONTINENTAL CASUALTY COMPANY, Third-Party Defendant.

Supreme Court, Special Term, New York County, Part I.

Nov. 19, 1966.

Edward Nathan, New York City, for plaintiff.

Max J. Gwertzman, New York City, for defendant Firemen's Fund Ins. Co. Levy, Heller, Kessler & Walzer, Brooklyn, for defendants and third-party plaintiffs Stetter & Levy.

Harnett & Reid, New York City, for third-party defendant Continental Casualty Co.

MATTHEW M. LEVY, Justice.

The plaintiff Waugh brought this action as attorney in fact of one Lapadula on a fire insurance policy issued to the latter by the defendant company. There are other defendants against whom relief is sought on other bases--but their presence in the action is of no moment on the present issue. The relevant defenses pleaded by the insurer are, among others, fraud in the inducement of the issuance of the policy, knowing increase in hazard in breach thereof, misrepresentation as to the value of the insured premises, and false swearing in relation to the loss, thus voiding the policy.

The defendant insurance company has served notice to examine the plaintiff and the insured before trial and to produce certain records and papers at such examinations. The plaintiff moves, pursuant to CPLR 3103(a), for a protective order vacating the defendant's notice on the grounds (1) that Lapadula, the insured, is not a proper party to be examined and is without knowledge of most of the facts herein, (2) that the plaintiff and Lapadula were heretofore examined, (3) that the plaintiff is entitled to priority of examination and has not yet completed his examination of the defendant, and (4) that the documents demanded should not be required to be produced, in that some are already in possession of the defendant, some are not in existence, that some are not material or necessary, and that the itemized demand therefor is burdensome and a 'fishing expedition'. I shall consider these issues in the order stated.

(1)The premises allegedly damaged were owned by Lapadula, the named insured. He was the plaintiff named as such in a prior suit, subsequently dismissed for lack of prosecution. That he has now designated another as his attorney in fact to prosecute the present action does not obliterate the obvious conclusion that he is either, even now, the beneficially interested party, or is, as a matter of substance if not of form, the assignor of the claim in suit. Whether he has the status of the former or the latter, he cannot, through the utilization of the process of such designation, render himself immune from the obligation to make 'full disclosure of all evidence material and necessary in the prosecution or defense of (this) action' (CPLR 3101(a)). For, in any case, he is the 'person who possessed (the) cause of action * * * asserted in the action' (subd. 2) or he is that 'person where the court on motion determines that there are adequate special circumstances' (subd. 4)--which, in the light of the facts here indicated, I do.

That, as the movant's attorney states, Lapadula is without knowledge as to all of the material facts, is no ground for vacating the notice to examine him before trial--any more than it would be a basis for quashing a subpoena that he testify at the trial itself. Of course, he may, in respect of any inquiry, state his lack of knowledge under oath at his examination.

(2) The earlier examination herein was in fact and in deed conducted by the insurance company as a hearing in claim and was held Prior to the commencement of this or the first action. (Cf. CPLR 3117(c).) The right thereto was provided for in the contract of insurance. Since such examination was held and concluded before any litigation between the parties, it was of course conducted at a time when no issues in the action had as yet been drawn.

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