Rossi v. Hartford Fire Insurance

72 A.D.2d 548, 420 N.Y.S.2d 725, 1979 N.Y. App. Div. LEXIS 13608

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 9, 1979
• Status: Published

Opinion

In an action on a fire insurance policy, the defendants appeal from an order of the Supreme Court, Westchester County, entered May 22, 1979, which granted the plaintiffs motion to strike their answer unless they complied with an interrogatory relating to investigative reports which defendants claimed were immune as material prepared for litigation. Order modified by adding thereto a provision granting defendants a protective order with respect to any and all material obtained subsequent to the report dated May 31, 1977. As so modified, order affirmed, without costs or disbursements. Defendants’ time to comply is extended until 10 days after service upon them of a copy of the order to be entered hereon, together with notice of entry thereof. The loss occurred May 27, 1977. Defendants received an independent adjuster’s report dated May 31, 1977 which stated that the "Fire has been determined by local authorities as unquestionable arson”. Defendants consequently had "bona fide” reason "to investigate the legitimacy of the loss” (see Seaview Chef v Transamerica Ins. Co., 61 AD2d 1043, and cases cited therein), and any reports and investigations subsequently obtained were prepared for litigation. To the extent that the interrogatory with which compliance was required by Special Term was not limited to material obtained prior to the time when defendants had evidence that the fire was of suspicious origin, they are entitled to a protective order. The independent adjuster’s report stating that the fire had been determined to be arson is evidence that the fire was of suspicious origin (see Seaview Chief v Transamerica Ins. Co., supra). Hopkins, J. P., Titone, Mangano and Gulotta, JJ., concur.