Faraone v. Carrollwood Associates

In an action to recover damages for injury to property based on negligence, breach of contract and breach of warranty, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Weiner, J.), entered April 15, 1985, as, upon the plaintiffs’ motion to compel discovery and the defendants’ cross motion for a protective order, denied their motion and granted the defendants’ cross motion to the extent of striking [345] items 3 to 6 of the plaintiffs’ notice of discovery and inspection. Order modified, on the law and facts, by reversing so much thereof as denied the plaintiffs’ motion and granted the defendants’ cross motion insofar as it struck item 4 of the plaintiffs’ notice of discovery and inspection, and granting the plaintiffs’ motion and denying the defendants’ cross motion with respect to that item. As so modified, order affirmed, insofar as appealed from. The plaintiffs are awarded one bill of costs. The defendants shall produce the items requested in item 4 of the plaintiffs’ notice of discovery and inspection at a time and place to be stipulated by the parties. If within 20 days of service upon the defendants of a copy of the order to be entered hereon, with notice of entry, the parties have not so stipulated, the plaintiffs may fix the time and place for production by written notice of not less than 15 days. The plaintiffs purchased a condominium unit located at Carrollwood Condominium I from the defendant Carrollwood Associates. The complaint alleges that as a result of water leakage into the basement of their structure and sewerage backups into the basement, they suffered property damage. Their complaint alleges three causes of action against the defendants based on negligence, breach of contract and breach of warranty. Each cause of action seeks $75,000 in damages. The date of loss was May 4, 1984. By May 24, 1984, they had retained attorneys to represent them on their claim, but by letter dated August 14, 1984 to the plaintiffs’ attorneys, the insurance adjusters for the insurance carrier for Carrollwood Condominium I rejected the plaintiffs’ claim. On or about November 13, 1984, the plaintiffs instituted this suit and issue was thereafter joined by service of the defendants’ answer. The complaint included the following allegation: "10. That the defendant, carrollwood associates, contracted with a third party for the purpose of having said third party build, erect and/or construct the Carrollwood Condominium I.” The defendants’ answer responded to that allegation as follows: "(5) Defendants deny each and every allegation contained in paragraph numbered '10’ of the complaint except admit that Defendant, carrollwood associates contracted with a number of third parties and leaves said contracts for the Court’s interpretation.” By notice of discovery and inspection dated January 16, 1985, the plaintiffs sought the production, inter alia, of: [346] "3. Reports prepared as a result of water or sewerage leakage into plaintiffs[’J unit whether prepared by any defendant or an insurance company acting on their behalf. "4. The contracts referred to in paragraph '5’ of defendants’ Answer. "5. The entire claim file, Lumberman’s Mutual Ins. Co. file # 176-63208, which claim was made by plaintiffs for water damage. "6. Any document, report, memorandum or other, generated as a result of the investigation described in the correspondence annexed hereto as Exhibit 'A’.” When the defendants did not timely respond to these demands, the plaintiffs moved for an order compelling discovery and the defendants cross-moved for a protective order vacating items 3, 4, 5 and 6 of the notice of discovery and inspection. Special Term denied the motion and granted that cross motion. Special Term was correct in holding as to items 3, 5 and 6 that "[s]ince these documents were prepared in contemplation of litigation, they are privileged and exempt from disclosure under CPLR 3101 (d)” (see, Matos v Akram & Jamal Meat Corp., 99 AD2d 527; Vernet v Gilbert, 90 AD2d 846). Therefore, those three items were palpably improper and it was not necessary for the defendants to move for a protective order within 10 days as required by CPLR 3122. However, with respect to item 4, the claim that it was too broad and lacks specificity was waived by the defendants’ failure to move for a protective order pursuant to CPLR 3122. The fact that the defendants may have to produce a number of contracts for discovery as a result of the demand does not render the demand palpably improper. Lazer, J. P., Mangano and Brown, JJ., concur.