Russo v. Quincy Mutual Fire Insurance

256 A.D.2d 1164, 683 N.Y.S.2d 445, 1998 N.Y. App. Div. LEXIS 14292

Opinion

—Order unanimously reversed on the law with costs and motion granted. Memorandum: Supreme Court erred in denying the motion of Quincy Mutual Fire Insurance Company and New York Central Mutual Fire Insurance Company (defendants) for an order quashing the subpoena served on defendants’ expert directing him to appear for a deposition and for a protective order precluding his deposition. Contrary to the court’s determination, the fact that defendants originally hired the expert to investigate plaintiffs’ fire insurance claim rather than to provide expert testimony at trial neither deprives him of his status as an expert nor relieves plaintiffs of the burden of showing special circumstances warranting the deposition (see, Hallahan v Ashland Chem. Co., 237 AD2d 697, 698-699; see also, Adams Light. Corp. v First Cent. Ins. Co., 230 AD2d 757; The Hartford v Black & Decker [U.S.], 221 AD2d 986). The record, moreover, does not support the court’s alternative determination that plaintiffs met their burden of showing such special circumstances (see, Adams Light. Corp. v First Cent. Ins. Co., supra; Generali Ins. Co. v Honeywell, Inc., 194 AD2d 442; 232 Broadway Corp. v New York Prop. Ins. Underwriting Assn., 171 AD2d 861). (Appeal from Order of Supreme Court, Orleans County, Fahey, J.— Discovery.) Present — Denman, P. J., Green, Hayes, Balio and Boehm, JJ.