Tower Ins. Co. of N.Y. v Murello

2009 NY Slip Op 09460 [68 AD3d 977]

December 15, 2009

Appellate Division, Second Department

As corrected through Wednesday, February 10, 2010

Tower Insurance Company of New York, as Subrogee of NatalieSoleymanzadeh, Respondent, et al., Plaintiffs, v Robert Murello, Doing Business asRobert Murello Electrical Contracting Co., et al., Appellants.

—[*1]Andrea G. Sawyers, Melville, N.Y. (David R. Holland of counsel), for appellants.

Law Office of Steven G. Fauth, LLC, New York, N.Y. (Francis P. Manfredi of counsel), forrespondent.

In a subrogation action to recover amounts paid by the plaintiff to its insured for injury toproperty, the defendants appeal from an order of the Supreme Court, Nassau County (Mahon, J.),entered April 9, 2009, which denied their motion to compel the plaintiff Tower InsuranceCompany of New York to comply with a demand for discovery and inspection.

Ordered that the order is affirmed, with costs.

CPLR 3101 (a) provides that "[t]here shall be full disclosure of all matter material andnecessary in the prosecution . . . of an action." "The phrase 'material and necessary'should be 'interpreted liberally to require disclosure, upon request, of any facts bearing on thecontroversy which will assist preparation for trial by sharpening the issues and reducing delayand prolixity. The test is one of usefulness and reason' " (Auerbach v Klein, 30 AD3d451, 452 [2006], quoting Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]).Nevertheless, "unlimited disclosure is not permitted" (Silcox v City of New York, 233AD2d 494 [1996]). Thus, as a matter of discretion (see Young v Tierney, 271 AD2d 603[2000]), the court may issue a protective order where a discovery demand seeks privileged orirrelevant material (see Holness v Chrysler Corp., 220 AD2d 721, 722 [1995]). In thiscase, the plaintiff met its burden of demonstrating that the demanded documents were privileged"by virtue of being material prepared in anticipation of litigation" (Marten v Eden ParkHealth Servs., 250 AD2d 44, 47 [1998]; Landmark Ins. Co. v Beau Rivage Rest.,121 AD2d 98 [1986]). Skelos, J.P., Florio, Balkin, Belen and Austin, JJ., concur.