Hanna v Graphic Arts Mut. Ins. Co.

[*1] Hanna v Graphic Arts Mut. Ins. Co. 2006 NY Slip Op 51547(U) [12 Misc 3d 1193(A)] Decided on May 17, 2006 Supreme Court, Oneida County Julian, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 17, 2006
Supreme Court, Oneida County

Keith F. Hanna and Renee J. Hanna, Plaintiffs,

against

Graphic Arts Mutual Insurance Company, Defendant.



32-06-0037



Gustave Detraglia, Esq. (Gustave DeTraglia, Jr., Esq., of Counsel) for the Plaintiffs.

Law Offices of Roy A. Mura (Scott D. Storm, Esq., of Counsel) for the Defendant.

Robert F. Julian, J.

The Plaintiff suffered a fire loss on December 5, 2003 at their property in Clayville, NY. The property and contents were insured by Graphic Arts.

Graphic Arts paid for the dwelling loss and clean up, but disputes the claim for personal property loss, alleging that the inventory provided by the plaintiffs is grossly exaggerated. Graphic Arts alleges that the Plaintiffs are guilty of fraud and concealment in regard to their claim.

Graphic Arts wishes to take the Plaintiffs depositions separately and prevent communication about that testimony until both have testified. The Plaintiffs counter that the due process and the rules of discovery permit a party to be present at all phases of a legal proceeding.

The Court is guided by Matter of Estate of Czachor 137 AD2d 915, 524 NYS2d 582 [3rd 1988]: . . . under appropriate circumstances, a court may exclude a party from a pretrial deposition (see, Swiers v. P & C Food Mkts., 95 AD2d 881; Schwartz v. Marien, 65 Misc 2d 811, 813, affd 36 [*2]AD2d 1027; cf., Shepherd v. Swatling, supra .). Here, petitioners' interests are virtually identical and each is represented by the same attorney. With these circumstances prevailing, to allow each petitioner to testify in the presence of the other would clearly work an unfair advantage in their favor. While trial courts are vested with broad discretion in supervising disclosure, in the interest of preserving respondent's right to the spontaneous, uncolored testimony of each petitioner, we find that separate depositions are in order . . .

The Defendant's allegations here are that, in effect, the Plaintiffs have conspired to falsely inflate their claim. Their interests are identical. They are uniquely possessed of the underlying facts, and their depositions are of uniquely supreme importance to whatever defense the Defendant may be able to fashion to their claim. The Defendant is entitled to some leeway, and the relief it requests is reasonably related to a fair defense of the case. It is difficult to see how the Plaintiffs would suffer any real prejudice from the relief requested.

Accordingly, the Plaintiffs shall be deposed separately, their attorney shall not report the substance of the testimony of the first to the second to be deposed, and the second to be deposed shall not see the transcript of testimony prior to testifying.

The prevailing party is directed to prepare an order on notice to adverse parties. Upon objection to the form of the order, the prevailing party shall make a motion to settle the order on notice.

Utica, NY _____________, 2006

__________________________________

Robert F. Julian, J.S.C.