Wasserman v. Amica Mut. Ins. Co.

193 A.D.3d 795

141 N.Y.S.3d 859 (Mem)

Helene WASSERMAN, et al., respondents,

v.AMICA MUTUAL INSURANCE COMPANY, appellant.

2019–11151

Index No. 609572/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—January 21, 2021

April 7, 2021

Brooks, Berne & Herndon PLLC, New York, N.Y. (Nicole M. Varisco, Kelechi L. Ajoku, and Thomas H. Herndon of counsel), for appellant.

Pazer, Epstein, Jaffe & Fein, P.C., New York, N.Y. (Matthew J. Fein of counsel), for respondents.

REINALDO E. RIVERA, J.P., ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, in effect, to recover damages for breach of contract and loss of consortium, the defendant appeals from an order of the Supreme Court, Nassau County (Sharon M.J. Gianelli, J.), entered September 11, 2019. The order, insofar as appealed from, (1) granted that branch of the plaintiffs' motion which was to compel the defendant to produce a copy of the file related to their supplementary underinsured/uninsured motorist coverage, and denied those branches of defendant's cross motion which sought a protective order, or, in the alternative, to permit an in camera review of the subject file by the Supreme Court prior to its disclosure, and (2) denied that branch of the defendant's cross motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging loss of consortium.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the defendant's cross motion which sought to permit an in camera review of the file related to the plaintiffs' supplementary underinsured/uninsured motorist coverage prior to its disclosure, and substituting therefor a provision granting that branch of the cross motion and directing that the subject file shall be submitted to the Supreme Court, Nassau County, for an in camera review prior to its disclosure to the plaintiffs, and (2) by deleting the provision thereof denying that branch of the defendant's cross motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging loss of consortium, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith.

The plaintiffs, Helene Wasserman (hereinafter Helene) and Paul Wasserman (hereinafter Paul), commenced this action against the defendant, Amica Mutual Insurance Company (hereinafter Amica), asserting causes of action, in effect, to recover damages for breach of an insurance contract and loss of consortium. The complaint alleged, inter alia, that on February 4, 2017, Helene was struck by a motor vehicle owned and operated by nonparty Andrew D. Wray. The complaint further alleged that the plaintiffs had a personal automobile policy of insurance (hereinafter the policy) with Amica that included supplemental underinsured/uninsured motorist (hereinafter SUM) bodily injury coverage. The complaint alleged that Helene sustained serious injuries as a result of her accident, and the plaintiffs made a demand under the SUM provision in the policy, but Amica failed or refused to provide adequate compensation as required under the policy terms. Amica interposed an answer to the complaint.

The plaintiffs moved to strike Amica's answer, or, in the alternative, to compel Amica to produce a copy of the SUM file. Amica opposed the motion and cross-moved, inter alia, (1) for a protective order denying the production of the SUM file, or, in the alternative, permitting service of a privilege log or an in camera review of the SUM file by the Supreme Court prior to any disclosure, and (2) pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging loss of consortium.

By order entered September 11, 2019, the Supreme Court, inter alia, granted that branch of the plaintiffs' motion which was to compel Amica to produce the SUM file, and denied those branches of Amica's cross motion which sought a protective order or providing for an in camera review of the SUM file. The court also denied that branch of Amica's cross motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action for loss of consortium. Amica appeals. By decision and order on motion dated November 15, 2019, this Court, inter alia, stayed so much of the order as directed Amica to produce the SUM file pending hearing and determination of the appeal.

CPLR 3101(a) directs that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." "A party asserting that material sought in disclosure is privileged bears the burden of demonstrating that the material it seeks to withhold is immune from discovery" ( Melworm v. Encompass Indem. Co., 112 A.D.3d 794, 795, 977 N.Y.S.2d 321 ; see Spectrum Sys. Intl. Corp. v. Chemical Bank, 78 N.Y.2d 371, 377, 575 N.Y.S.2d 809, 581 N.E.2d 1055 ; Sigelakis v. Washington Group, LLC, 46 A.D.3d 800, 800, 848 N.Y.S.2d 272 ). Such burden is met "by...