        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

550
CA 14-02000
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


REBECCA LALKA, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ACA INSURANCE COMPANY, DEFENDANT-RESPONDENT.


LAW OFFICES OF EUGENE C. TENNEY, PLLC, BUFFALO (NATHAN C. DOCTOR OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

HAGELIN KENT LLC, BUFFALO (BENJAMIN R. WOLF OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Patrick
H. NeMoyer, J.), entered January 27, 2014. The order, insofar as
appealed from, denied in part the motion of plaintiff to compel
disclosure.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting that part of plaintiff’s
motion to compel disclosure of those documents previously submitted to
Supreme Court for in camera review and as modified the order is
affirmed without costs.

     Memorandum: Plaintiff commenced this action to recover
supplementary underinsured motorist coverage pursuant to an automobile
liability insurance policy issued by defendant. Thereafter, plaintiff
moved for an order compelling defendant to disclose its entire claim
file or, in the alternative, to produce all documentation claimed to
be privileged and/or confidential for in camera inspection. Supreme
Court granted that part of the motion seeking those portions of the
claim file generated before the date of commencement of the action
“with the exception of those materials reviewed in camera.”

     We conclude that the court properly denied that part of
plaintiff’s motion seeking disclosure of documents in the claim file
created after commencement of the action (see Nicastro v New York
Cent. Mut. Fire Ins. Co., 117 AD3d 1545, 1546, lv dismissed 24 NY3d
998; see generally CPLR 3101 [d] [2]). We agree with plaintiff,
however, that the court abused its discretion in denying that part of
her motion seeking disclosure of those documents submitted to the
court for in camera review, and we therefore modify the order
accordingly. “It is well settled that ‘[t]he payment or rejection of
claims is a part of the regular business of an insurance company.
Consequently, reports which aid it in the process of deciding which of
                                 -2-                           550
                                                         CA 14-02000

the two indicated actions to pursue are made in the regular course of
its business’ ” (Nicastro, 117 AD3d at 1546). “Reports prepared by
. . . attorneys before the decision is made to pay or reject a claim
are thus not privileged and are discoverable . . . , even when those
reports are ‘mixed/multi-purpose’ reports, motivated in part by the
potential for litigation with the insured” (Bombard v Amica Mut. Ins.
Co., 11 AD3d 647, 648; see Bertalo’s Rest. v Exchange Ins. Co., 240
AD2d 452, 454-455, lv dismissed 91 NY2d 848). Here, the documents
submitted to the court for in camera review constitute multi-purpose
reports motivated in part by the potential for litigation with
plaintiff, but also prepared in the regular course of defendant’s
business in deciding whether to pay or reject plaintiff’s claim, and
thus plaintiff is entitled to disclosure of those documents.




Entered:   May 8, 2015                         Frances E. Cafarell
                                               Clerk of the Court
