Mt. McKinley Ins. Co. v Corning Inc.

Mt. McKinley Ins. Co. v Corning Inc. 2011 NY Slip Op 01061 Decided on February 15, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 15, 2011
Mazzarelli, J.P., Sweeny, Acosta, Román, JJ.
3343N 602454/02

[*1]Mt. McKinley Insurance Company, etc., et al., Plaintiffs,

v

Corning Incorporated, Defendant-Appellant, AIU Insurance Company, et al., Defendants, Century Indemnity Company, etc., et al., Defendants-Respondents.




Dickstein Shapiro LLP, New York (Edward Tessler of counsel),
for appellant.
O'Melveny & Myers LLP, New York (Tancred V. Schiavoni of
counsel), for respondents.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered December 4, 2009, which, to the extent appealed from, granted the cross motion of respondents Century Indemnity Company et al. to compel discovery and denied appellant Corning Incorporated's assertion of the "common interest" privilege for certain communications with asbestos claimants made in connection with strategy and preparation for Bankruptcy Plan confirmation hearings, unanimously affirmed, with costs.

In this action seeking a declaratory judgment establishing entitlement to insurance coverage for defense and/or indemnification, the IAS court did not abuse its discretion in
ordering the subject documents produced (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 1 AD3d 223, 224 [2003]). The motion court properly held that Corning failed to establish that the subject documents were protected by the common interest privilege. While Corning asserted that the documents were "generated in furtherance of a common legal interest" between itself and the committees in the bankruptcy action and that the documents included, communications evincing strategy and preparation for an upcoming confirmation hearing, it submitted no evidence in support of these assertions. Moreover, Corning never stated, let alone established, that it or the committees had a reasonable expectation of confidentiality with respect to these communications. Accordingly, Corning failed to establish that the relevant communications with the committees were in furtherance of a common legal interest and that with respect to these communications, Corning and the committees had a reasonable expectation of confidentiality (see United states v Schwimmer, 892 F2d 237, 243-244 [2d Cir 1989]; In re [*2]Quigley Company, Inc., 2009 Bankr LEXIS 1352, 8-9 [Bankr SD NY 2009].

We have considered Corning's remaining arguments and find
them unavailing. The Decision and Order of this Court entered herein on October 12, 2010 is hereby recalled and vacated (see M—5785 decided simultaneously herewith).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED:

CLERK