Farina v Merchants Ins. Co. of N.H., Inc.
Annotate this CaseDecided on July 26, 2005
Supreme Court, Nassau County
Anthony Farina, KATHLEEN FARINA, GHANI ABDUL and CARPET DESIGN-X, INC., Plaintiffs,
against
Merchants Insurance Company of New Hampshire, Inc., and THE B&G GROUP, INC., Defendants.
11084/2003
Burton S. Joseph, J.
Motion (seq. no. 3) by the attorney for the plaintiff for an Order pursuant to CPLR 3120(b) directing the Nassau County Fire Marshal, a non-party, to produce the Fire Marshal's Report(s), photographs, statements, interviews and all other documents, recordings and reports prepared and maintained by them regarding its investigation of the fire that occurred on August 12, 2001 at 627 Peninsula Boulevard, Hempstead, New York, is granted and cross-motion (seq. no. 4) by the attorney for the Nassau County Attorney on behalf of non-party Nassau County Fire Commission Office of the Fire Marshal for an Order pursuant to CPLR 2304 and CPLR 2307 to quash the judicial subpoena dated January 20, 2005; pursuant to CPLR 710 to surpress the disclosure of the documents sought; and pursuant to CPLR 3103 for a protective order, is denied.
This matter involves a fire loss that occurred on August 12, 2001 at premises owned by [*2]the plaintiff, Kathleen Farina, and leased by Carpet Design-X, whose principal is plaintiff Ghani Abdul. The locations of the subject premises is 627 Peninsula Boulevard, Hempstead, New York. The plaintiff Ghani Abdul contends that at the time of the fire he was preparing for the grand opening of the store that was scheduled for Labor Day weekend. Prior to said fire, plaintiff alleges he spent approximately $50,000.00 on leasehold improvements and betterments.
Subsequent to the fire, an investigation was purportedly conducted by the Nassau County Fire Marshal's office by Fire Investigator Richard Maickel under investigation number 420-01, indicating that the fire was considered to be incendiary in nature. In light of the fact that this Court granted the motion of Merchants Insurance Company of New Hampshire, Inc. ("Merchants") to amend its answer to raise the affirmative defense of arson, a subpoena was prepared by the attorney for the plaintiffs and served on Richard Maickel-a Fire Investigator that handled the investigation of the August 12, 2001 fire at the insured's property. The subpoena was so-ordered by this Court on or about January 20, 2005.
After the fire and pursuant to the terms and conditions of the policy of insurance, Carpet Design-X gave notice of the claim to defendant insurance company. A property insurance loss register ("PIRL") was prepared by plaintiff's insurance company, dated August 15, 2001. A proof of loss was filed by Public Adjuster, Mark Adler on or about January 2, 2002 indicating that the cause of loss was unknown to the plaintiff, Ghani Abdul. On January 13, 2003, defendant Merchants disclaimed coverage on a number of grounds including specifically under Section E Property Loss Conditions, subsection (3) Duties in the Event of Loss or Damage which states in part:
a. You must see that the following is done in the event of loss or damage to Covered Property: (5) At our request, give us complete inventories of the damaged and undamaged property. Include quantities, costs, values and amount of loss claimed; (6) As often as may be reasonable required, permit us to inspect the property proving the loss or damage and examine your books and records...(7) Cooperate with us in the investigation or settlement of the claim.
Former counsel for Merchants that prepared the disclaimer referred to Section D of the Businessowners Common Policy Conditions which required examination and audit of the insured's books and further referred to the provision under New York Changes-Fraud which states as follows:
We do not provide coverage for any insured ("insured") who has made fraudulent statements or engaged in fraudulent conduct in connection with any loss ("loss") or damage for its coverage sought under this policy.
The letter stated that the insured "made fraudulent statements and/or engaged in fraudulent conduct in connection with the loss and damage for which coverage is sought under this claim including, but not limited to, statements regarding the amount, quantity and value of the loss and/or damage claimed, repairs allegedly made by you to the loss location prior to the subject [*3]occurrence and improvements and betterments allegedly made by you to the loss location prior to the subject occurrence."
The attorney for the plaintiff contends that at the time of the initial fire there is evidence of ongoing communications provided by Merchants between their investigator, Gene West of Guardian Investigation Group, Inc. ("Guardian") and Richard Maickel of the Fire Marshal's Office. (Guardian's letter dated September 13, 2002 to the attorney formerly representing Merchants, Anthanasia Apostolakos of Faust, Goetz, Schenker & Blee Exhibit H to the moving papers). This communication indicated that the Fire Marshal was reporting to Gene West the contents of some of the interviews that Mr. Maickel conducted. Mr. West recited that "the Fire Marshal Rick Maickel has informed me that on August 8, 2001, at 7 am, the subject premises alarm was checked via telephonic signal. Later that morning, at 9:01 and 9:09 am separate telephone calls were placed to the subject cancellation notice indicating an overdue balance of $770.32 from the location of Mr. Ghani's previous Lynbrook store, as well as a letter indicating that the workers compensation policy for...an employee of Mr. Ghani had been cancelled...Fire Marshals state that Mr. Ghani alleged to them that he left his previous Lynbrook location because the new Hempstead location was much larger..." (See, Exhibit H to the moving papers).
An earlier memorandum printed October 11, 2001 indicates that a representative of Guardian interviewed Rick Maickel and Maickel related to Guardian "that the fire originated in the rear of the Carpet Design-X, Inc., in the center of said premises floor, as a result of the ignition of flammable liquid vapors that had been intentionally introduced thereto. He [Maickel] has designated this incident as an incendiary fire. He states that his investigation has confirmed that the owner of Carpet Design-X, Inc., Abdul Ghani was present in the fire building when the fire occurred."
As indicated by the attorney for the plaintiff, based on a review of Mr. Maickel's letter to Guardian dated October 5, 2001 there appears to have been a sharing of information between the Fire Marshal and the insurance company's investigator.
The attorney for the plaintiff implores the Court that since the information supplied to the defendant's attorney that formed the basis of his application to be permitted to amend his answer (i.e. that the fire was of an incendiary nature) came directly from the Nassau County Fire Marshal's Office, it is only fair, reasonable and within the appropriate legal parameters of the New York Freedom of Information Law ("FOIL") that the Nassau County Fire Marshal's Office be directed to release the records pursuant to the Court subpoena.
The State Legislature has provided under New York's Freedom of Information Law ("FOIL") that FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government. See, Grajales v. Lungen, 15 AD3d 789 citing Matter of Capital Newspapers Div. Of Hearst Corp. v. Whalen, 69 NY2d 246. Furthermore, "the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articularizing a particularized and specific justification for denying access." Grajales, Id., citing Matter of Capital Newspapers Div. Of Hearst Corp. v. Burns, 67 NY2d 562. The burden rests on the agency seeking an exemption from disclosure for denying a request for records. City of Newark v. Law Department of the City of New York, 305 AD2d 28, 34, and "affidavits merely repeating the statutory phrasing of an exemption are insufficient, Id., citing DJL Restaurant Corp. v. Department of [*4]Buildings, 273 AD2d 167, 168-169. While Public Officers Law 87(2)(e) does qualify ongoing criminal investigations as a qualified exemption, where the grounds for an exemption no longer exists, then the basis for the restriction should no longer exist.
Where there is an ongoing and active investigation, then records pertaining to that investigation might be deemed non-discoverable. Disclosure during a criminal proceeding could be deemed to "have a chilling effect on the pending prosecution." Pittari v. Pirro, 258 AD2d 202.
In the within action the "ongoing investigation" has not been active since October 21, 2001 and the Fire Marshal has not made a sufficient showing as to why the records cannot be released pursuant to the Court subpoena.
In support of its motion to quash the subpoena, the attorney for Nassau County has submitted an affidavit sworn to June 2, 2005 by Kenneth L. St. Bernard, an Assistant District Attorney of Nassau County, who serves as a Special Prosecutor assigned to the Arson Bomb Squad of the Nassau County Police Department in which he states that:
" 6. The file contains the investigations of Detective Raymond Kurtz, of the Nassau County Police Department Arson and Bomb Squad, and Investigator Richard Maickel, of the Nassau County Fire commission, Office of the Fire Marshall (sic).
7. Based upon my review of the information contained in the Nassau County district Attorney's file in this case, both Nassau County Police Detective Raymond Kurtz, and Nassau County Fire Commission Office of the Fire Marshall (sic) Investigator Richard Maickel, have been directed to continue their active, ongoing, joint criminal arson investigation in this case, until an arrest is made. (Emphasis added)
8. In view of the active, ongoing nature of the criminal arson investigation continuing in this case, the records sought by Plaintiff in the subpoena are privileged, confidential, not subject to disclosure and can not be produced by this Office because they are part of an active, ongoing, joint, criminal arson investigation by the Nassau County Police Department and the Nassau County Fire Marshall's (sic) Office, concerning the fire on August 12, 2001, at 627 Peninsula Boulevard, Hempstead, New York. (Emphasis added)"
Counsel for the Fire Marshal's Offices fails to address the allegations set forth in plaintiffs' initial moving papers that there were communications taking place between Richard Maickel of the Fire Marshal's Office and the investigator for defendant Merchants Insurance Company of New Hampshire, Inc. ("Merchants"). Plaintiff's allegations that Merchants employed the services of Gene West of Guardian Investigation Group, Inc. ("Guardian") to investigate this fire, and the documentary evidence in plaintiff's moving papers proving that an abundance of information was provided to Guardian from Mr. Mackel, (plaintiffs' Exhibit H annexed to the moving papers) are entirely ignored by defendant's counsel in their opposition [*5]papers. Neither the County, nor the defendant address the salient issue inherent in plaintiff's request for disclosure, namely, why plaintiffs have not been afforded the same opportunity as the representatives of Merchants to this information? The Fire Commission should not have the ability to pick and choose to whom the information is to be disseminated, on the one hand and claim privilege on the other. The Fire Commission's disclosure of information contained in their file to the defendant effectively waives any privilege they might otherwise have in regards to same.
In Sciascia v. City of New York, 96 AD2d 901, the City of New York was directed to produce and make available to all parties the entire investigators file prepared by the Fire Marshal's Office in connection with the fire in question. In the within action as in Sciascia (supra), there is a failure to demonstrate that the materials sought for discovery are exempt under either CPLR 3101(g) or Public Officers Law sec 87 (g)(2).
The Fire Marshal's Office has not even suggested that the records be made available to the Court for an in camera inspection to decide whether or not either all or at least portions of the records might be made available pursuant to the FOIL requests and the "So Ordered Subpoena." Nor has the Fire Marshal contradicted the plaintiff's allegation that the records were made available to the insurance carrier. Nor has Nassau County made even a "de minimis" attempt to indicate in a substantive manner the status of the investigation, other than the say that it is "on going since August 2001."
Nassau County is directed to comply with the subpoena within twenty (20) days of today's date.
Notwithstanding anything to the contrary, should Nassau County determine that complying with the subpoena will compromise its "ongoing investigation", it may apply to this Court on Notice to the plaintiff, for an in camera inspection of the requested records within ten (10) days of today's date, or same is waived.
Only counsel familiar with this action shall appear in the Part 13 Courtroom for a Conference on July 29, 2005 at 9:00 a.m..
ENTER:
Dated: Mineola, New York
July 26, 2005J.S.C.
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