Hanover Ins. Co. v Y Am. & Wonder Works Constr.

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Hanover Ins. Co. v Y Am. & Wonder Works Constr. 2012 NY Slip Op 33345(U) July 3, 2012 Supreme Court, New York County Docket Number: 117829/2009 Judge: Doris Ling-Cohan Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SCANNED ON 7/19/2012 SUPREME COURT OF THE STATE O:F NEW YORK - NEW YORK COUNTY PRESENT: Hon. Doris Ling-Cohan, Justice Part 36 HANOVER INSURANCE COMPANY a/s/o ROBERT L. POWLEY, P.C., Plaintiff, INDEX NO. 117829/2009 -against- MOTION SEQ. NO. 003 Y AMERICA AND WONDER WORKS CONSTRUCTION CORP., Defendants. & Third-party Action. The following papers, numbered note of issue: FILED l.:..l were considered on this motion to compel and cross-motion to strike the JUL 1 B 2n11 PAPERS NUMBERED NEW YORK Notice of Motion/Order to Show Cause, - Affidavits - Exhibi&OUNTY CLERK'S OEF!del Answering Affidavits - Exhibits 5 6 Replying Affidavits Cross-Motion: [ X] Yes 7 [ ] No 3 4 Upon the foregoing papers, and for the reasons stated bdow, plaintiffs motion to compel defendant Wonderworks Construction Corporation ("Wonderworks") to produce the accident report prepared by Wonderworks employees shortly after the subject fire is granted and the cross-motion by Wonderworks to vacate the note of issue is denied. Plaintiff seeks to compel Wonderworks to supply a report which, according to Leonard Vorobyov, an employee of W onderworks, as testified to at his deposition, was prepared after the subject fire, by himself and the assistant to the president. Vorobyov EBT, Exh. C, Notice of Motion, at 24, linlS-24. According to Mr. Vorobyov, usually after an accident, reports are completed. Id. at 25, lines 2-9. Based upon such testimony, plaintiff argues that, while Wonderworks has taken the position that the report is privileged, arguing that it was prepared in anticipation of litigation, the document was prepared a mere two days aJter.the fi~e, no attorney was involved at that time, and Wonderworks' witness testified that the report was prepared in the regular course of business. [* 2] -· I I Plaintiff further argues that, even if the report was prepared in anticipation' of litigation as asserted by 1 I Wonderworks, the report is discoverable since the material is not otherwise available, as the fire happened on a Sunday and was cleaned up before plaintiff could conduct an investigation. Plaintiff maintains that Mr. Vorobyov's contemporaneous observations are likely to describe factual situations, that are not available from any other source. Moreover, plaintiff maintains that Wonderworks has not satisfied its burden or proof in establishing that the subject report is privileged. This court agrees. CPI ,R §3l01 (g), titled "Accident reports'', provides, in relevant part, that:, "[ e]xcept as otherwise provided by law, in addition to any oth~r matter which may be subject to disclosure, there shall be full disclosure of any written report of an accident prepared in the regular course of business operations or practices of any ... corporation ... unlcss prepared by a police or peace officer for a criminal investigation or prosecution and disclosure would interfere wi~h a criminal investigation or prosecution." New York courts have generally held that disclosure of accident reports and investigative insurance I I I reports are discoverable if "made in the regular course of business," inclucl.ing those obtained in the I course of an internal investigation or for internal business purposes, even if litigation is likely and it is one of the reasons f<ff the investigation. 148 Magnolia, LLC v Merrimack Mut. Fire Ins. Co., 62 AD3d 486, 487 ( l ' 1 Dept 2009). Even reports filed with a liability insurance carrier can be subject to discovery, if the party withholding discovery fails to show that the materifls sought were prepared 1 solely for litigation. id; see also Rosario v. North General Hospital, 40 AD3d 323, 323-24 (1" Dept ' 2007); Westhampton Adult Home, Inc. v. National Union Fire Insurance f.-'o. of Pittsburgh, PA, 105 J\D2d 627 (1 51 Dept 1984). While CPLR §3101 (b) provides that upon "objection by a person entitled:. to assert [a] privilege, privileged matter shall not be obtainable," "the burden of establishing any right to protection [from ' 2 [* 3] disclosure] is on the party asserting it; the protection claimed must be narrowly construed; and its application must he consistent with the purposes underlying the immunity". SjJectrwn 5iys. Intl. Corp. v Chem. Bank, 78 NY2d 3 71, 3 77 ( 1991 ); New York Times New.\paper Div. of the New York Times Co. v. I ¢ /,ehrer McGovern Bovis, Inc., 300 AD2d 169, 171 (1st Dept 2002). Here, it is not disputed that the subject accident report was prepared in the: regular course of business, as testified to hy Wonderworks' witness at his deposition, and that when there is an accident, it is Wonderworks' practice to complete reports. Wonderworks' claim of privilege is merely conclusively asserted by counsel and is not supported by any factual basis. New York courts have held that merely making conclusory assertions that a report is indeed made in anticipation diflitigation is not enough to meet the burden of proof requirement. See Brooklyn Union Gas Co. v Amer. Home Assurance Co., 23 AD3d 190, 191 ( l ' 1 Dept 2005). Moreover, "mere recitation of [a] self-serving statement is insuflicient to establish that the reports qualify for privilege of CPLR 3101 ( d)(2)." James v Metro North Commuter R.R .. 166 AD2d 266, 268 (l "1 Dept 1990). Here, significantly, in oppositi?n to the within motion, Wonderworks failed to demonstrate that the subject report was prepared "~olely in anticipation of I I I litigation", as required. 148 Magnolia, LLC v. Merrimack Mutual Fire /n.s-urance Co., 62 AD3d at 487. There is no indication or assertion that legal advice was given to Wondcr~c.nks with ruspect to the I subject report and it is not disputed that litigation had not been commenced at the time that the report I was made. Thus, as Wonderworks has failed to satisfy its burden of shoJing that the accident report is I privileged, plaintiff's motion is granted to the extent that Wondcrworks is compelled to supply a copy of the of the subject report. The cross-motion by Wonderworks to vacate the note of issue is denied a$ untimely, since it was not ' served within 20 days after service of the note of issue and certificate of readiness, as required. See 22 3 [* 4] . -· NYCRR §202.2l(e). Moreover, the affirmation of good faith is insufficient. See 22 NYCRR §202.7 ( c ). Accordingly, it is ORDERED that plaintiff's motion is granted to the extent that, within 30 days of service q(a copy rlthi.1· order with notice <?(entry, defendant Wonderworks shall supply to plaintiff the previously withheld accident report; and it is further ORDERED that defendant Wonderworks' cross motion is denied; and it is further ORDERED that, within 30 days of entry of this order, plaintiff sha:JJ serve a copy of this order upon all parties, with notice of entry. FILED JUL 18 2012 Dated: July Check one: ~co· -_t.~--> 2__, 2012 ( NEW YORK DORIS LING-COHA1'1~lY. CLERK'S OFFICE -- I FINAL DISPOSITION Check if Appropriate: ( X J NON-FINAL DISPOSITION [ ] DO NOT POST J:\Discowry Moti(mo\hnnovcr v_ wond.:r works accident reports.wp<I 4

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