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Claim File Not Discoverable In Personal Injury Action (NY)

February 2, 2017

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<p style="text-align: justify;">A tactic employed every now and then by plaintiffs’ attorneys is to demand production of the related insurance claim file in a personal injury action. The recent case of <a href="ttp://www.nycourts.gov/reporter/3dseries/2017/2017_00021.htm"><em>Veltre v. Rainbow Convenience Stores</em> </a>reiterated that this is rarely discoverable.</p>
<p style="text-align: justify;">In <em>Veltre</em>, plaintiff sustained personal injuries caused by a slip and fall on snow and ice in front of a Rainbow convenience store in Manhattan. Plaintiff sued the Rainbow convenience store and the building’s owner and during discovery, demanded a copy of the insurance claim file from the date of the accident up to the date of the filing of the lawsuit. Defendant Eureka Realty objected to plaintiff’s demand, and plaintiff filed a motion seeking to compel production. Over Eureka Realty’s objection, the plaintiff obtained an order compelling them to turn over the insurer’s claim file as the trial court determined that Eureka Realty had failed to establish that the claim file documents were privileged.</p>
<p style="text-align: justify;">Eureka appealed the order to the Appellate Division, First Department, who ruled that the claim file was immune from discovery because it was created by Eureka Realty's liability insurer, and plaintiffs had failed to demonstrate either that they could not otherwise obtain "a substantial equivalent" of the claim file materials without undue hardship, or that the defendant waived the privilege by relying upon the insurance claim file in support of its defense.  As such, it overturned the trial court's decision.</p>
<p style="text-align: justify;">Thanks to Jorgelina Foglietta for her contribution to this post and please write to <a href="mailto: mbono@wcmlaw.com">Michael Bono</a> if you would like more information.</p>

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