Buy for Less Wine & Liquors, Inc. v. Commercial Union Insurance

63 A.D.2d 976, 405 N.Y.S.2d 1002, 1978 N.Y. App. Div. LEXIS 12039

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 12, 1978
• Status: Published

Opinion

In an action on an insurance policy, plaintiff appeals from an order of the Supreme Court, Suffolk County, dated October 4, 1977, which denied its motion for renewal (which Special Term denominated a motion for reargument) of its cross motion to strike defendant’s answer because of defendant’s failure to respond to interrogatories. (By order of the same court, dated July 29, 1977, the cross motion was denied and, on defendant’s motion to vacate, the court struck certain interrogatories.) Order reversed, on the law, without costs or disbursements, motion to renew granted and, upon renewal, cross motion to strike defendant’s answer granted, unless defendant responds to Interrogatories Nos. 4b, 5, 6f, 7g, 10, 13b and 13c. Defendant’s time to respond to the said interrogatories is extended until 20 days after service upon it of a copy of the order to be made hereon, together with notice of entry thereof. In the event defendant complies, then, upon renewal, plaintiff’s cross motion denied. In an action on a fire insurance policy, investigation reports of experts employed by the insurer are not material prepared for litigation (see CPLR 3101, subd [d]) and are subject to disclosure, unless (as is not the case here) the insurer had previously rejected the claim or had made a firm decision to do so (see Mold Maintenance Serv. v General Acc. Fire & Life Assur. Corp., 56 AD2d 134; Millen Ind. v American Mut. Liab. Ins. Co., 37 AD2d 817). Martuscello, J. P., Shapiro, Cohalan and Margett, JJ., concur.