Nicolazzi v. Travelers Insurance , 106 Misc. 2d 718 ( 1980 )

OPINION OF THE COURT

John S. Lockman, J.

This motion by plaintiff to compel disclosure of the report made by John F. Connell Consultants, causation experts retained by defendant is granted to the extent set forth below and is in all other respects denied.

A fire occurred at plaintiff’s premises on November 21, 1976, and notice of loss was given to defendant on the following day. It is uncontradicted that the fire marshall informed defendant that he was investigating the origins of the fire and requested that no payment be offered pending such investigation. Defendant thereupon retained the causation expert whose report is here at issue and he examined the premises on December 3, 1976. It appears that nothing ultimately came of the fire marshall’s investigation and the claim was paid in June of 1977. Plaintiff commenced the present action to recover alleged damages resulting from defendant’s “bad faith” in not paying the claim until June of 1977.

Plaintiff asserts that the report of the causation expert is discoverable. Defendant argues that the report is privileged as material prepared in contemplation of litigation. (CPLR 3101, subd [d].) It being uncontradicted that defendant learned of the fire marshall’s investigation and was requested to withhold payment prior to retaining the causation expert, the court is compelled to find that defendant had substantial bona fide reasons for investigating the legitimacy of the loss. (Seaview Chef v Transamerica Ins. Co., 61 AD 2d 1043.) The fact that defendant ultimately paid the claim, rather than litigate it, does not detract from its assertion of privilege. (See Mold Maintenance Serv. v General Acc. Fire & Life Assur. Corp., 56 AD2d 134, 136.)

However, defendant’s opposition implicitly recognizes plaintiff’s right to disclosure of the factual observations made by the expert since the premises in question have been rebuilt and plaintiff cannot secure the data by his own efforts. (CPLR 3101, subd [d].) Therefore, the defendant shall furnish the plaintiff with a copy of the facts observed by John F. Connell Consultants and contained in their report within 20 days after service upon it of a copy of this order.