Kimbell v. Davis

81 A.D.2d 855, 438 N.Y.S.2d 860, 1981 N.Y. App. Div. LEXIS 11533

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 1981
• Status: Published

Opinion

— In a medical malpractice action, plaintiff appeals from an order of the Supreme Court, Kings County, dated November 3, 1980, which, on plaintiff’s motion pursuant to CPLR 3126 to strike defendants’ answers for failure to comply with an order of discovery, inter alia, (1) directed that the defendants deliver to the plaintiff a photocopy of the primary policy of insurance applicable to the time period involved in this action and (2) denied that portion of plaintiff’s motion which sought “disclosure of the number of claims brought against the defendant and defendant’s testate during the applicable policy period, the amount sought in each such claim and the amount already paid thereunder.” Order modified, by deleting the first, third and fourth decretal paragraphs and substituting provisions (1) directing that plaintiff be permitted (a) to examine and copy the original primary and excess insurance policies of defendants and (b) to obtain from defendants a sworn statement disclosing the number and the amounts of the claims made against defendants during the applicable policy period and the total of the sums paid out against the policies and (2) that in the event of the failure to comply with the discovery directives, defendants’ attorneys shall pay plaintiff the total sum of $500. As so modified, order affirmed, with $50 costs and disbursements to plaintiff. Defendants’ time to comply with the discovery directives is extended until 20 days after service upon them of a copy of the order to be made hereon, with notice of entry. Plaintiff is entitled (1) to examine and copy the original liability insurance policies of defendants and (2) to discover the number of claims against defendants during the applicable policy period, the amount sought in each such claim and the total of the sums paid out against the policies (see CPLR 3101, subd [f]; Folgate v Brookhaven Mem. Hosp., 86 Misc 2d 191). Damiani, J. P., Lazer, Gibbons and Cohalan, JJ., concur.