601217 09 v. XL (2011)

Supreme Court, Appellate Division, First Department, New York.

Fiserve Solutions, Inc., etc., et al., Plaintiffs–Respondents, 601217/09 v. XL Specialty Insurance Company., Defendant–Appellant. And another action

5001– 5002

Decided: May 05, 2011

Tom, J.P., Mazzarelli, Acosta, DeGrasse, Román, JJ.

Steptoe & Johnson LLP., New York (Christopher T. Lutz of the bar of the District of Columbia admitted pro hac vice of counsel), for appellant. Reed Smith LLP., New York (Wendy H. Schwartz of counsel), for respondents.

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered June 7, 2010, which denied defendant's motion to compel discovery, unanimously reversed, on the law and the facts, without costs and the motion granted. Appeal from order, same court and Justice, entered September 21, 2010, which denied defendant's motion for leave to renew, unanimously dismissed, without costs, as academic.

We find that defendant seeks not to engage in improper post-claim underwriting (see Banks v. Paul Revere Life Ins. Co., 31 F Supp 2d 82, 85 n 5 [1998] ) but to determine the scope of coverage under the insurance policy. Thus, the disclosure defendant requested is material and necessary in the defense of this action (CPLR 3101).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

CLERK

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