Veltre v. Rainbow Convenience Store, Inc. , 146 A.D.3d 416 ( 2017 )

Veltre v Rainbow Convenience Store, Inc. (2017 NY Slip Op 00021)

Veltre v Rainbow Convenience Store, Inc.

2017 NY Slip Op 00021

Decided on January 3, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 3, 2017
Friedman, J.P., Sweeny, Richter, Manzanet-Daniels, Kapnick, JJ.

158486/14 2614N 2613

[*1] Joseph Veltre, et al., Plaintiffs-Respondents,

v

Rainbow Convenience Store, Inc., Defendant, Eureka Realty Corp., Defendant-Appellant, PEC, LLC, Defendant. [And a Third-Party Action]

Hannum Feretic Prendergast & Merlino, LLC, New York (Matthew J. Zizzamia of counsel), for appellant.

Kagan & Gertel, Brooklyn (Irving Gertel of counsel), for respondents.

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]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 3, 2017

CLERK