Seaview Chef, Inc. v. Transamerica Insurance Co.

61 A.D.2d 1043, 403 N.Y.S.2d 123, 1978 N.Y. App. Div. LEXIS 10712

Opinion

In an action by a mortgagee on a policy of fire insurance, defendant Transamerica Insurance Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County, entered August 24, 1977, as denied its motion for a protective order. Order modified by adding thereto, after the provision that the motion for a protective order is denied, a further provision that such denial is as to those reports, writings, etc., which were prepared and received by appellant prior to January 3, 1977, and that the motion for a protective order is granted as to such items which were prepared and received by appellant after that date. As so modified, order affirmed insofar as appealed from, without costs or disbursements. The fire occurred on or about October 24, 1976. On January 3, 1977 a report was received from the fire department which indicated that the fire was of suspicious origin. At that time, appellant had "substantial bona fide reasons to investigate the legitimacy of the loss” (Mold Maintenance Serv. v General Acc. Fire & Life Assur. Corp., 56 AD2d 134, 135; see, also Kent v Maryland Cas. Co., 25 AD2d 653). Although the claim had not yet been rejected, it appears that reports made to it beyond that time were intended to aid in the resistance of the claim and prepared for litigation (cf. Millen Ind. v American Mut. Liab. Ins. Co., 37 AD2d 817; CPLR 3101, subd [d]). Titone, J. P., Rabin, Gulotta and Hargett, JJ., concur.