Veltre v. Rainbow Convenience Store, Inc.

2017 NY Slip Op 21, 146 A.D.3d 416, 45 N.Y.S.3d 30

Opinion

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered October 16, 2015, which, to the extent appealed from, granted plaintiffs’ motion to compel defendant Eureka Realty Corp. to produce a copy of its insurer’s claims files, unanimously reversed, on the law, without costs, and the motion denied. Appeal from order, same court and Justice, entered on or about March 30, 2016, which denied defendant’s motion for reargument, unanimously dismissed, without costs.

Contrary to defendant’s contention, plaintiffs made a demand for the entire claims file from defendant’s insurer by letter from their attorney, and obtained, over defendant’s objection, an order to disclose the file (see CPLR 3124). Nevertheless, the file is immune from discovery, because it was created by defendant’s liability insurer (see Recant v Harwood, 222 AD2d 372 [1st Dept 1995]), and plaintiffs failed to demonstrate either that they could not otherwise obtain “a substantial equivalent” of the material without undue hardship (see id at 374) or that defendant waived the privilege by relying upon the material in support of a defense (see Deutsche Bank Trust Co. of Ams. v Tri-Links Inv. Trust, 43 AD3d 56 [1st Dept 2007]).

Concur— Friedman, J.P., Sweeny, Richter, Manzanet-Daniels and Kapnick, JJ.