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Tower Insurance Company of New York v. Murello

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 15, 2009

TOWER INSURANCE COMPANY OF NEW YORK, AS SUBROGEE OF NATALIE SOLEYMANZADEH, RESPONDENT, ET AL., PLAINTIFFS,
v.
ROBERT MURELLO, D/B/A ROBERT MURELLO ELECTRICAL CONTRACTING CO., ET AL., APPELLANTS.

In a subrogation action to recover amounts paid by the plaintiff to its insured for injury to property, the defendants appeal from an order of the Supreme Court, Nassau County (Mahon, J.), entered April 9, 2009, which denied their motion to compel the plaintiff Tower Insurance Company of New York to comply with a demand for discovery and inspection.

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.

PETER B. SKELOS, J.P., ANITA R. FLORIO, RUTH C. BALKIN, ARIEL E. BELEN and LEONARD B. AUSTIN, JJ.

(Index No. 4883/07)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

CPLR 3101(a) provides that "there shall be full disclosure of all matter material and necessary in the prosecution... of an action." "The phrase material and necessary' should be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason'" (Auerbach v Klein, 30 AD3d 451, 452, quoting Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406). Nevertheless, "unlimited disclosure is not permitted" (Silcox v City of New York, 233 AD2d 494). Thus, as a matter of discretion (see Young v Tierney, 271 AD2d 603), the court may issue a protective order where a discovery demand seeks privileged or irrelevant material (see Holness v Chrysler Corp., 220 AD2d 721, 722). In this case, the plaintiff met its burden of demonstrating that the demanded documents were privileged "by virtue of being material prepared in anticipation of litigation" (Marten v Eden Park Health Servs., 250 AD2d 44, 46-47; Landmark Ins. Co. v Beau Rivage Rest., 121 AD2d 98).

SKELOS, J.P., FLORIO, BALKIN, BELEN and AUSTIN, JJ., concur.

20091215

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