GIBSON v. ENCOMPASS INSURANCE COMPANY (2005)

 Plaintiffs commenced this action to recover supplementary underinsured motorist (SUM) coverage pursuant to an automobile liability insurance policy issued by defendant.   Supreme Court properly denied that part of defendant's motion seeking to strike plaintiffs' notice to produce defendant's file regarding plaintiffs' SUM claim.   The court did not abuse its broad discretion in determining “that the sought-after disclosure was ‘material and necessary’ for the prosecution of plaintiff[s'] action” (Walsh v. Liberty Mut. Ins. Co., 289 A.D.2d 842, 843, 734 N.Y.S.2d 710, quoting CPLR 3101 [a] ).   The disclosure request was not “palpably improper” (Zambelis v. Nicholas, 92 A.D.2d 936, 460 N.Y.S.2d 360;  see Salwen Paper Co., Inc., Profit Sharing Retirement Trust v. Merrill Lynch, Pierce, Fenner & Smith, 110 A.D.2d 895, 896, 488 N.Y.S.2d 447), and defendant's contentions that the file contains material exempt from disclosure are raised for the first time on appeal and are thus not preserved for our review (see Central Buffalo Project Corp. v. Rainbow Salads, 140 A.D.2d 943, 944-945, 530 N.Y.S.2d 346).   In any event, defendant failed to meet its burden of establishing that the file contains material that is privileged or otherwise exempt from discovery (see Bombard v. Amica Mut. Ins. Co., 11 A.D.3d 647, 648, 783 N.Y.S.2d 85;   McCarthy v. Klein, 238 A.D.2d 552, 553-554, 656 N.Y.S.2d 395).

 The court also properly denied that part of defendant's motion seeking a protective order to prevent the deposition of defendant's underinsurance claim representative.   We perceive no basis to disturb the determination that defendant's representative possesses “material and necessary” information regarding the action (CPLR 3101[a];  see Walsh, 289 A.D.2d at 843, 734 N.Y.S.2d 710).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

MEMORANDUM: