169 A.D.2d 468 | N.Y. App. Div. | 1991
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The order of same court, entered June 14, 1990, which denied defendant’s motion to renew the prior motion and to strike plaintiffs complaint for failure of its principal to answer certain questions in his examination before trial and interrogatory 19, or alternatively to compel such answers, and granted plaintiffs cross motion to vacate the deposition notices served on two nonparty witnesses to the extent of barring examination as to items vacated by prior orders, is unanimously modified, on the law, the facts, and in the exercise of discretion, to the extent of granting defendant’s motion to compel plaintiff to fully answer interrogatory 19, and denying plaintiffs cross motion to vacate the deposition notices served on the nonparty witnesses, and is otherwise affirmed, without costs.
In this action on a fire insurance policy, the insurer has interposed various defenses, including arson and the insured’s misrepresentation or concealment of material facts in its proof of loss and preaction examination under oath. The appeal is taken by the insurer from various disclosure rulings relating in the main to these defenses.
Our review of IAS’s disclosure rulings is guided by the following considerations. First, the standard of review is abuse of discretion. Second, as long as an affirmative defense remains undismissed, its merit must be assumed and questions concerning it must be answered if not unnecessarily burdensome. Third, the defense of arson puts in issue the financial condition of not only plaintiff but also that of its only shareholder and officer, Mr. Ben-Jacob, as relevant to whether
Based upon the above, plaintiff should be directed to answer interrogatories 5-11 concerning Steve and Mike Sound Corp. By the same token, interrogatories 21 concerning loans to plaintiff, 37 seeking Mr. Ben-Jacob’s net worth statement (although limited to one date, namely, Jan. 1, 1987, not the four-year period demanded by defendant), 49 concerning Mr. Ben-Jacob’s jewelry business (limited to two years, not the four years demanded), and 55 concerning Mr. Ben-Jacob’s use of an accountant (limited to two years not the four years demanded), should be reinstated. Interrogatory 52, asking for
Concerning the three interrogatories that IAS both upheld and struck, 12 concerns plaintiffs dealings with its landlord and should be answered as defendant maintains that substantial rent was owed at the time of the fire and the subject is pleaded in the 15th, 16th and 17th affirmative defenses; 46, which asks whether plaintiff retained a public adjuster, and, if so, for a copy of the retainer agreement, should be answered since it would be important to know if plaintiff had any professional assistance in the calculation of its loss claim; and 47, as to plaintiffs access to the basement storage area, should be answered as relevant to his ability to start a fire there.
Interrogatory 45 is one of the key interrogatories, asking for sales and purchase information for the nine-month period that plaintiff was in business prior to the fire, and, in view of its other rulings, it is doubtful that IAS actually intended to strike it. In any event, it should be answered.
Interrogatories 20 through 25, 38-44, and 48 concern plaintiffs sworn proof of loss, claim, examination under oath, representations to defendant and production of books and records. Since defendant was a party to all of this, it should have knowledge thereof, which explains why IAS obviously viewed these items as unnecessarily burdensome. Interrogatory 34, concerning plaintiffs actions "subsequent to the time it was notified of the loss”, is way too general and was properly stricken. Interrogatory 53, which seeks the address and telephone number of an accountant believed to have prepared plaintiffs claim, was properly vacated because redundant of interrogatory 54.
Plaintiff provides no justification for its limited answer to interrogatory 19. This concerns crucial purchase documentation necessary to ascertain the accuracy of plaintiffs book inventory calculation of its loss, and plaintiff should answer it fully.
IAS’s limitation on the deposition of plaintiffs accountant, Benjamin Rosenstark, to matters pertaining to plaintiff only for the one-year period prior to the loss, should be modified so