Flex-O-Vit USA, Inc., Respondent, v. Niagara Mohawk Power Corporation, Appellant, et al., Defendants., 281 A.D.2d 980

Summary

Defendant established that the fire debris was removed and rebuilding was under way by the time the action was commenced, and neither defendants nor third-party defendant had access to the premises in the aftermath of the fire. Those circumstances were sufficient to warrant the deposition of a representative who investigated the fire and made a report to plaintiff's insurer, limited to that person's factual observations and procedures and excluding any inquiry regarding expert opinion. The trial court erred in granting plaintiff's motion to quash the subpoena duces tecum directing production of the fire investigation file of the company that investigated on behalf of plaintiff's insurer and in denying defendant's cross motion to compel production of the cause and origin investigation file of the employee of plaintiff's insurer who was at the scene immediately following the fire. Those documents were discoverable pursuant to N.Y. C.P.L.R. 3101(a)(1), and plaintiff failed to establish ...