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Kildaze v Countrywide Insurance Company
2003 NY Slip Op 30167(U)
July 18, 2003
Supreme Court, New York County
Docket Number: 0107372/2002
Judge: Martin Shulman
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Index No.:
Plaintiffs,
- against -
DECISION and ORDER
COUNTRY-WIDE INSURANCE COMPANY,
INFINITY TRUCKING, INC.,
D.L.M. TRUCKING COW. and
JOHN DOES 1-5.
Defendants.
HON. MARTIN SHULMAN, J.S.C.:
Plaintiffs Anait Kildaze and George Kildaze (collectively “plaintiffs”) move for an order:
( 1) compelling non-party Progressive Insurance Company (“Progressive”) to produce various
documents relating to an October 29, 1999 accident involving a vehicle owned by defendant
D.L.M. Trucking (‘‘D.L.M.’’) and a vehicle occupied by Anait Kildaze and Jose Vasquez
(“Vasquez”); and (2) compelling defendant Country-Wide Insurance Company (“Country-Wide”)
to serve responses to plaintiffs’ Interrogatories (Interrogatories annexed as Exh. 4 to Motion).
County-Wide opposes that branch of plaintiffs’ motion which seeks discovery from Progressive
and asserts that the branch of plaintiffs’ motion which seeks to compel responses to plaintiffs’
Interrogatories has been rendered moot as such responses have been served (Country-Wide’s
Responses to Plaintiffs’ Interrogatories annexed as Exh. A to Torto Aff.).  Progressive and
defendants Infinity Trucking, Inc. (“Infinity”) and D.L.M. have not submitted any opposition to
motion.’
‘Plaintiffs’ affidavits of service for the instant motion disclose that plaintiffs served
Progressive by serving its authorized agent and purportedly served Country-Wide, Infinity,
D.L.M. and John Does 1-5 by serving copies of the motion papers on Thomas Torto, Esq. Mr.
Torto in his                                                                                       in Opposition submitted on behalf of Country-Wide states, inter alia, that
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In the underlying action, plaintiffs assert that on or about December 11, 2001 a judgment in
the amount of $248,404.50, was entered in favor of plaintiffs and against John Koratzanis and
D.L.M.  Apparently, the judgment remains unsatisfied and plaintiffs allege that more than thirty
(30) days have elapsed since the service of the judgment, with notice of entry upon D.L.M. and its
purported insurer, Country-Wide.  Accordingly, plaintiffs seek, inter alia, a judgment against
Country-Wide pursuant to Insurance Law                                                                3420. Country-Wide has denied  coverage, inter alia,
based on inadequate notice.  Plaintiffs seek discovery from Progressive relating generally to the
notice given to Country-Wide concerning the accident and specifically request: “(a) the last known
address of Kathy Lowe and Edward Burke, who apparently were involved in communications with
Country-Wide . . . concerning this accident; (b) computer records documenting communications
with Country-Wide; (c) litigation papers; and (d) records of various communications in which
                                                                                                      Country-Wide . . . denied the existence of a policy.” (Motion at                                       Plaintiffs assert that
                                                                                                      Progressive obtained knowledge of the accident and issues relating to Country-Wide’s notice of the
                                                                                                      accident, inter alia, as a result of a claim for uninsured motorist benefits made by Vasquez against
                                                                                                      Progressive.  This led to Progressive filing a Petition to Stay Uninsured Motorist Arbitration
                                                                                                      captioned  In the Matter of the Arbitration between Progressive Insurance                              against Jose
Vasquez and D.L.M. Trucking                                                                           John Koratzanis, Anait                                                                                 and Country-Wide Insurance
Company,                                                                                              Sup. Ct., N.Y. Co. Index No.: 1
                                                                                                      In support of this motion, plaintiffs have submitted an                                                affirmation of good-faith
attesting to efforts to resolve these discovery disputes without court intervention and a copy of a
letter sent by plaintiffs’ counsel to Progressive seeking the aforementioned items.
he is                                                                                                 . .the attorney for defendant Country-Wide in the above-captioned                                      Aff. at                      1)
and does not address the issue of service on the other defendants .
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Country-Wide asserts that the plaintiffs’ motion to compel Progressive to produce the
requested material must be denied because: (1) plaintiffs’ motion is premature since they have not
served either a notice of deposition or a subpoena duces tecum on Progressive (Torto Aff. at          3);
(2) the plaintiffs have failed to demonstrate that they have previously attempted to get the
information they now seek from Progressive directly from Country-Wide and that such information
was unavailable (Torto Aff. at                                                                        4); and (3) the plaintiffs are seeking discovery from Progressive, a
non-party, before seeking discovery from the parties themselves (Torto                                At                                                                     5).
CPLR 3 120 (b) directs that when a party seeks to compel the production of documents from
a non-party in the absence of that non-party’s deposition, a motion must be made on notice to all
parties. In this action, plaintiffs do not seek, as of yet, to depose any of Progressive’s current
employees and are merely seeking documentary evidence. There is no requirement that plaintiffs
must serve either a notice of deposition or a subpoena duces tecum on Progressive.’
                                                                                                                                                                             Country-Wide also relies on Schwarz v. Schwarz, 227 A.D. 2d 61 1                                                                     Dept.,
Tsachalis v.                                                                                                                                                                 of Mount Vernon, 262                                               399   Dept.,                                                      v.       John’s
Riverside                                                                                             144                                                                    333                                                                      Dept., 1988) and In the Matter of Validation Review
Associates, Inc. 237                                                                                                                                                         614                                                                      Dept., 1997) to support their contentions. Country-Wide’s
reliance is misplaced.
In Schwarz, the Appellate Division, Second Department reversed the lower court’s order
directing the defendant’s counsel to comply with a subpoena and submit to a deposition by
’An amendment to the CPLR, effective September 3,2003,  inter alia, allows for the
inspection of non-party documents and materials upon the issuance of a subpoena duces tecum and
eliminates the requirement of CPLR 3 120 (b) that in the absence of a non-party deposition, a party
must obtain a court order prior to conducting such discovery. (2002 N.Y. Laws 575). According
to the Sponsor’s Memorandum the changes are                                                           . , designed to                                                        methods for obtaining
discovery of documents, particularly routine business records, from non-party witnesses and
procuring their admission into evidence.”
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plaintiffs counsel.  The Appellate Court noted that the plaintiff had                                  . . .failed to establish the
requisite special circumstance to justify her demand for nonparty disclosure regarding the source of
an appeal bond held in escrow by defendant’s counsel, since she failed to demonstrate that the
information sought was otherwise unobtainable (see, Dioguardi v.    John ’s Riverside Hosp., 144
333) and the deposition testimony of the defendant suggests that this information was
either already obtained or is obtainable from the defendant himself.”  Significantly, the non-party
defense counsel actively opposed plaintiffs attempt to take counsel’s testimony, whereas in the
instant matter non-party Progressive has failed to offer any opposition at all.
In Tsachalis, the Appellate Court upheld that part of the Supreme Court’s order which
denied the plaintiffs motion to quash a subpoena to compel the production of the entire file from
the non-party Westchester County District Attorney                                                     relating to plaintiff’s arrest and trial.
In that matter the DA brought the motion to quash and argued that the plaintiff had failed to
demonstrate the material sought was unavailable from other sources.
In In the Matter of Validation Review Associates, the Appellate Court upheld the quashing
                                                                                                                                                   of subpoenas on a non-party witness where the subpoenas were                                                                                                                                                                                   , . .facially invalid and
                                                                                                                                                                                                                       unenforceable because they did not contain, or were not accompanied by, a notice setting forth the
reason why disclosure was sought.”
                                                                                                       In                                                                                                                                                                                                                   the Appellate Division, Second Department found that whether or not
                                                                                                                                                   -‘special circumstances” warranting non-party disclosure exist is                                                                                                                                                                              . .a question committed to the
sound discretion of the court to which the application for discovery is made” and may be shown by
. .establishing that the information sought to be discovered cannot be obtained from other
sources.’’ The Appellate Court upheld the lower court’s decision denying defendants’ request to
depose one of several treating physicians where such request was based on a claim
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without foundation” that the physician has instructed the plaintiff to lie and the court
to hold that a defendant in a personal injury action may, as of right, depose any and all
physicians who are shown to have treated the injuries claimed by the
In the instant matter, Progressive has not objected to the plaintiffs’ demands for information
regarding what notice of the accident, if any, was provided to County-Wide. It is Country-Wide
that objects premised, inter alia, on its contention that the plaintiffs have yet to demonstrate that
information regarding notice to Country-Wide is unavailable from the parties themselves.
Plaintiffs’ Complaint (annexed as Exh. 1 to Motion) contains the following allegation:
Country-Wide Insurance Company was notified properly of the                                              (Complaint at                                                                                   16).
Significantly, Country-Wide’s Verified Answer (annexed as Exh.2 to Motion) states:
Wide]                                                                                                    each and every allegation contained in paragraphs                                               and                                  of the complaint”
(Verified Answer at                                                                                      6), and Country-Wide failed to respond to plaintiffs interrogatories despite
service of same and a follow-up letter sent to Country-Wide’s Counsel (annexed as Exh. 5 to
motion) until after Country-Wide was served with the instant motion. Determining the issue of
notice to Country-Wide is of paramount importance in resolving this action.
                                                                                                         As the Appellate Division, First Department noted in Rios v. Donovan, 2 1                       409
(   Dept.,                                                                                               purpose of disclosure . . . is to advance the function of a trial, to ascertain
truth and to accelerate the disposition of suits.” CPLR                                                  3 101 (a) mandates  that                                                                        shall be
                                                                                                         disclosure of all evidence material and necessary in the prosecution or defense of an action,
regardless of the burden of proof by . . .                                                               any other person [non-party], upon notice stating the
circumstance or reasons such disclosure is sought or                                                                                                                                                     “This provision has been liberally
construed to give effect to the strong public policy favoring full disclosure to adequately appear for
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trial.”  New York State Electric and Gas                                                                   v. Lexington Insurance Co., 160                261
(1  Dept., 1990). Plaintiffs have adequately demonstrated their need for disclosure from
Progressive.
Accordingly, it is hereby ordered that Progressive shall produce the last known addresses
of former Progressive employees Kathy Lowe and Edward Burke and make available for
inspection and examination any documentation                                                               records relating to what notice, if any, was
provided to Country-Wide regarding the October 29, 1999, accident involving the vehicle owned
by D.L.M. and the vehicle occupied by Anait Kildaze and Jose Vasquez.  The cost of reproduction
and transportation incident thereto shall be borne by plaintiffs.  To the extent that plaintiffs’ motion
seeks Progressive’s “entire files and other materials, and all papers in   lawsuits   arising from the
accident and the Petition to Stay Uninsured Motorist Arbitration sought by Jose Vasquez ,that
request is denied as being overly broad, vague and potentially violative of the attorney-client
privilege.
That branch of plaintiffs’ motion which seeks to compel Country-Wide to respond to
plaintiffs’ interrogatories has been rendered moot.
The foregoing constitutes the Decision and Order of this Court. Courtesy copies have been
sent to counsel for all parties.
Dated: New York, New York
July 18,2003
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