Fonda v. Nationwide Mutual Fire Insurance

Appellate Division of the Supreme Court of New York

Fonda v. Nationwide Mutual Fire Insurance

99 A.D.2d 680, 472 N.Y.S.2d 53, 1984 N.Y. App. Div. LEXIS 16948

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 27, 1984

StatusPublished

Cited by2 cases

This text of 99 A.D.2d 680 (Fonda v. Nationwide Mutual Fire Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Fonda v. Nationwide Mutual Fire Insurance, 99 A.D.2d 680, 472 N.Y.S.2d 53, 1984 N.Y. App. Div. LEXIS 16948 (N.Y. Ct. App. 1984).

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Opinion

Order unanimously modified and, as modified, affirmed, with costs to plaintiff, in accordance with the following memorandum: On its motion for a protective order, defendant, a fire insurance company, failed to sustain its burden of showing that the report of its investigator was privileged. Its affidavit in support of the motion is devoid of any facts indicating that the report was created exclusively in preparation for litigation (see Hawley v Travelers Ind. Co., 90 AD2d 684; Yannick v Tube City Iron & Metal Co., 77 AD2d 623). We may not consider matters in a party’s brief which are not contained in the record (Interstate Window Cleaning Co. v Morse/Diesel Inc., 89 AD2d 820). The order appealed from should be modified, therefore, by deleting therefrom the statement that the report of defendant’s investigator is privileged and need not be furnished. (Appeal from order of Supreme Court, Onondaga County, Donovan, J. — disclosure.) Present — Doerr, J. P., Boomer, Green, O’Donnell and Schnepp, JJ.

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Order unanimously modified and, as modified, affirmed, with costs to plaintiff, in accordance with the following memorandum: On its motion for a protective order, defendant, a fire insurance company, failed to sustain its burden of showing that the report of its investigator was privileged. Its affidavit in support of the motion is devoid of any facts indicating that the report was created exclusively in preparation for litigation (see Hawley v Travelers Ind. Co., 90 AD2d 684; Yannick v Tube City Iron & Metal Co., 77 AD2d 623). We may not consider matters in a party’s brief which are not contained in the record (Interstate Window Cleaning Co. v Morse/Diesel Inc., 89 AD2d 820). The order appealed from should be modified, therefore, by deleting therefrom the statement that the report of defendant’s investigator is privileged and need not be furnished. (Appeal from order of Supreme Court, Onondaga County, Donovan, J. — disclosure.) Present — Doerr, J. P., Boomer, Green, O’Donnell and Schnepp, JJ.

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Bluebook (online)

99 A.D.2d 680, 472 N.Y.S.2d 53, 1984 N.Y. App. Div. LEXIS 16948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fonda-v-nationwide-mutual-fire-insurance-nyappdiv-1984.

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