Calendar Date: February 16, 2017
Offices of Craig Curcio, Middletown (Chandel M. Rispin of
counsel), for appellant.
Wadlin, Heppner & Martuscello, LLP, Kingston (Daniel G.
Heppner of counsel), for respondents.
Before: Peters, P.J., Lynch, Rose, Devine and Mulvey, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (Mott, J.), entered March
24, 2016 in Ulster County, which, among other things, granted
plaintiffs' cross motion to compel disclosure.
Daniel Curci and his wife, plaintiff Tiffany Curci,
derivatively, commenced this negligence action against
defendant, the wife's father, for injuries that Daniel
Curci sustained to his hand while operating a log splitter on
defendant's property. In answering the complaint,
defendant denied ownership of the log splitter. In discovery,
plaintiffs demanded that defendant produce a copy of an audio
recording of a statement that defendant gave to his insurer
shortly after the accident, during which defendant
acknowledged ownership of the log splitter. By that point,
plaintiffs were already in possession of a transcript of the
statement. Defendant moved for a protective order precluding
plaintiffs from utilizing the statement, contending that the
statement was recorded and transcribed as material prepared
for litigation (see CPLR 3101[d] ; 3103).
Plaintiffs cross-moved to compel disclosure (see
CPLR 3124). Supreme Court denied defendant's motion and
granted plaintiffs' cross motion, finding both that
defendant failed to demonstrate the statement was prepared
for litigation and that, in any event, defendant waived the
privilege. Defendant appeals.
statement was made during a phone conversation between Judy
Gavin, the insurer's claims representative, and defendant
five days after the incident. At the start of the
conversation, Gavin informed defendant that the conversation
was being recorded and taken as part of the normal claims
process. Gavin further agreed to provide defendant with a
copy of the statement. We have long recognized that
"[t]he purpose of liability insurance is the defense and
settlement of claims and, once an accident has arisen, there
is little or nothing that the insurer or its employees do
with respect to accident reports except in preparation for
eventual litigation or for a settlement which may avoid
litigation" (Ainsworth v Union Free School Dist. No.
2, Queensbury, 38 A.D.2d 770, 771 ). As such, an
insurer's file is generally protected by "a
conditional immunity... as material prepared for
litigation" (id.). This conditional privilege
may have to yield to disclosure where the other party
demonstrates a substantial need for the material and
withholding same would result in undue hardship (see
CPLR 3101[d] ). Accident reports prepared with a mixed
purpose, however, are not exempt from disclosure (see
Hewitt v Palmer Veterinary Clinic, P.C., 145 A.D.3d
1415, 1415 ; Claverack Coop. Ins. Co. v
Nielsen, 296 A.D.2d 789, 790 ).
burden was to demonstrate that his statement was obtained
solely for litigation purposes (see Friend v SDTC-Center
for Discovery, Inc., 13 A.D.3d 827, 829 ). To that
end, defendant submitted the affidavit of Dennis Stauffer,
who was Gavin's supervisor at the time of the incident.
Stauffer explained that Gavin was no longer employed by the
insurer and that she procured the statement in accord with
the insurer's "normal practice in anticipation of
future litigation." In our view, Stauffer's
affidavit, coupled with Gavin's own characterization of
the interview as part of the normal claims process, satisfied
defendant's threshold burden of proof (see Kin Hwa Ku
v City of New York, 106 A.D.3d 698, 699 ). There
is no dispute that ownership of the log splitter is a key
issue, but plaintiffs have other means available to explore
this issue, and they have not demonstrated any undue hardship
if the statement is withheld. Nor is there any indication
that the statement was taken for some purpose other than
preparing for litigation.
question of waiver remains. Contrary to Supreme Court's
assessment, the fact that the insurance company provided
defendant with a copy of the statement did not amount to a
lack of due diligence on the part of defendant or waive the
confidentiality of the document (cf. Fernekes v Catskill
Regional Med. Ctr., 75 A.D.3d 959, 961 ). In her
responding affidavit, Tiffany Curci attached a copy of the
transcript, explaining that defendant came to her home and
provided the transcript to her. She directly denied stealing
the document from defendant. Defendant, in contrast, stated
in his affidavit that he stored the transcript in his
"garage/office space" and neither gave the
transcript to plaintiffs nor authorized them to access his
garage. Given this factual dispute, a hearing is in order to
determine whether defendant waived the privilege by
voluntarily giving the transcript to plaintiffs (see
CPLR 3103, 3124).
Peters, P.J., Rose, Devine and Mulvey, JJ., concur.
that the order is modified, on the law, without costs, by
reversing so much thereof as granted plaintiffs' cross
motion; matter remitted to the Supreme Court for further
proceedings not inconsistent ...