S.T.A. Parking Corp., Plaintiff, v. CHUBB (2026)

In this action, plaintiff, S.T.A. Parking Corp., seeks damages on its breach-of-contract claim from defendant, Federal Insurance Company, its insurer. According to STA, Federal breached its obligations under the policies Federal issued to STA by refusing to indemnify STA for property damage to premises owned by East 77 Owners Co., LLC, for which STA is liable.

STA seeks indemnification from Federal for a judgment it incurred in an action between itself and East 77. That action stemmed from property damage STA caused to East 77's property. (See East 77 Owners Co. L.L.C. v King Sha Group, Inc., Index No. 603340/2007, Martin Schoenfeld, J.). Federal contends that STA and East 77 colluded in that action to inflate the damages judgment East 77 would obtain against STA. According to Federal, STA and East 77—through their respective counsel, Russell Wolfson and Robert Friedman—agreed that STA would not have to pay East 77 on the judgment. Instead, STA would sue its insurers, including Federal, for indemnification, and once indemnified, STA would divide the proceeds among itself, East 77, and their counsel.¹ (The parties call this the "assignment agreement.")

Motion sequences 005, 006, 007, and 008 involve a variety of discovery disputes.

This court previously issued an order requiring nonparties Allen and Benjamin London to comply with Federal's 2021 subpoenas. On motion seq 005 the Londons move to reargue that decision. The motion is granted in part and denied in part.

On motion sequence 006, Federal moves to compel nonparty East 77 to comply with Federal's subpoena. On motion sequence 007, Federal moves to compel STA to comply with its discovery requests, and STA cross-moves to vacate Federal's discovery demands. And on motion sequence 008, STA moves to compel Federal to comply with its discovery requests as well. Motion sequence 006 is granted. Motion sequences 007 and 008, and the cross-motion on motion sequence 007, are granted in part and denied in part.

On motion sequence 009 Federal moves to disqualify Wolfson, and his firm, Venable LLP, from representing STA. STA cross-moves for sanctions. The motion and cross-motion are denied.

DISCUSSION

I. Motion Sequence 005

Allen and Benjamin London are the movants on motion sequence 005. Allen London was the principal of East 77 at the time the premises were damaged. Benjamin London, his son, was the principal of London Property Management Co., East 77's property manager. Currently, Allen London is the Chief Executive Officer of Solstice Residential Group, and Benjamin London is Solstice's corporate counsel.

The Londons move (i) to stay enforcement of this court's April 11, 2023, order requiring them to comply with Federal's subpoenas (see NYSCEF No. 342 at 13 [transcript page], 17 [pdf pagination] [handwritten order]); and (ii) to reargue the portion of the April 11, 2023, order compelling them to respond to the subpoenas and denying their cross-motion to quash them. (See NYSCEF No. 402 at 2 [order to show cause].) Alternatively, the Londons seek reimbursement for expenses they incur in responding to the subpoenas—including attorney fees—and an order directing their depositions (if any) to be held in Florida or by remote means. (Id.) The motion is granted in part and denied in part.

A. Subpoenas and Personal Jurisdiction

In April 2023, this court ordered the Londons to comply with Federal's subpoenas (mot seq 002). (See NYSCEF No. 342 at 13 [transcript page], 17 [pdf pagination].) Federal had argued that it subpoenaed the Londons in July 2021 using two methods: Serving them at the New York headquarters of Solstice, where the Londons are employed, and serving them personally at their Florida residences.

In the April 2023 order, the court found that the Londons' contentions "were roughly the same" as those of Friedman and Kalajian, the former of whom this court concluded was served in compliance with Florida's out-of-state service requirements. (Id. at 13 [transcript page].) The Londons contend that this court did not consider, in full, their argument that Federal failed to properly serve them with the nonparty subpoenas—whether in New York or Florida. They argue that this court incorrectly lumped their arguments together with those of Friedman and Kalajian.

This court agrees with the Londons that it overlooked part of their argument. In particular, this court did not address whether the New York service of the subpoenas was valid. The branch of the Londons' motion for leave to reargue is therefore granted. The court now considers again whether Federal properly served the subpoenas on the Londons.

CPLR 308 (2) provides that service on individuals may be made "by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served," in addition to following mailing and affidavit-of-service requirements. The "actual place of business" is defined as "any location that the defendant, through regular solicitation or advertisement, has held out as its place of business." (CPLR 308 [6].)

The Londons argue that that New York service was ineffective, because the address at which they were served—Solstice's headquarters—is not their actual place of business. They contend that they maintain offices in Florida, not at Solstice's New York location. (See NYSCEF No. 399 at 9.) Federal argues in response that even though the Londons might work in Florida, they have held themselves out as having their actual place of business at the New York location, rendering service there proper. (See NYSCEF No. 411 at 11.)

This court agrees with Federal. Solstice's website reflects that Allan London is Solstice's CEO and that Benjamin London is Solstices's corporate counsel. (See NYSCEF No. 413.) Both Londons occupy top roles in Solstice. And the website reflects that the Londons are part of Solstice's New York Office.² (See NYSCEF No. 413 at 1 [pdf pagination].) The Londons have thus held themselves out as having an actual place of business in New York. (See Gibson, Dunn & Crutcher LLP v Glob. Nuclear Services and Supply, Ltd., 280 AD2d 360, 361 [1st Dept 2001]; Columbus Realty Inv. Corp. v Weng-Heng Tsiang, 226 AD2d 259, 259 [1st Dept 1996]["[I]nasmuch as appellant was an officer and co-owner of the business where CPLR 308 [2] service was made, giving rise to a clear identification of the work performed by her with that place of business, it is not significant that she worked mainly from her house rather than the place of business."].) Moreover, "service of process at [Solstice] was reasonably calculated to afford [the Londons] with notice of commencement of the action,." (Edan v Johnson, 117 AD3d 528, 529 [1st Dept 2014].) There is no reason to believe that Solstice personnel would not "convey the message or papers to [the Londons], as the intended part[ies]." (Id.)

Federal's New York service of the subpoenas on the Londons was valid. Therefore, the court does not reach the question about the validity of serving the subpoenas in Florida. The Londons must respond to the subpoenas within 30 days of entry of this order. In turn, the portion of the Londons' motion to stay enforcement of the April 11, 2023, order is denied as academic.

B. Broad and Harassing Nature of the Subpoenas

The Londons also argue that this court erred by not quashing the subpoenas as overly broad and harassing. The Londons provide two examples of the sorts of demands Federal made, including "[a]ll communications concerning the STA Project" and "[a]ll documents concerning the East 77 Property Damage." (NYSCEF No. 399 at 15.) These two demands are too broad. The Londons need not respond to them in their current form.

With respect to the remainder of the document demands in the subpoenas, the Londons have not provided copies of the subpoenas for the court to consider. Nor do they otherwise reproduce the subpoenas' demands beyond the two just quoted. The court thus lacks a basis to conclude that the remaining demands in the subpoenas are of similar (over)breadth to the ones the court has seen. The request to quash altogether the remaining document demands is denied. To the extent the Londons object to Federal's remaining discovery requests, they must provide formal responses to the requests and raise any objections therein.

C. Costs

The Londons ask that should this court require them to respond to the subpoenas, Federal should be required to defray the Londons' reasonable expenses incurred through their compliance, including attorney fees. (See NYSCEF No. 399 at 18.) Federal opposes this branch of the motion only to the extent that the Londons seek defrayal of their attorney fees. (See NYSCEF No. 411 at 15.)

CPLR 3122 (d) provides that "[t]he reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery." Although this court has found no appellate authority directly on point, several trial courts have held that subpoenaed nonparties' attorney fees may be included in the production expenses that the party seeking discovery must cover.³ (See e.g. Matter of Khagan, 66 Misc 3d 335, 339 [Sur Ct, NY County 2019]; Finkelman v Klaus, 2007 Slip Op 52331(U), *5 [Sup Ct, Nassau County 2007]; see also Patrick M. Connors, Supplemental Practice Commentaries CPLR 3122 [noting that even though "[s]pecific reference to attorneys' fees is omitted from CPLR 3122(d)," the "court would be empowered to direct such a payment, particularly where any substantial right of the nonparty witness is involved and representation by an attorney is needed"]; cf. L.F. v M.F., 78 Misc 3d 810, 822 [Sup Ct, Nassau County 2023] [holding "that CPLR § 3122(d) was not intended to include reimbursement of attorneys fees within the context of a matrimonial action"] [emphasis in original].)

The court therefore agrees with the Londons that their reimbursable production expenses should include attorney fees they incur in responding to the subpoenas. Those production expenses do not, however, include attorney fees incurred in litigating the validity of the subpoenas, i.e. the fees incurred on this motion to reargue (mot seq 005) or on the underlying motion (mot seq 002).

D. Depositions

The Londons ask this court to modify its April 11, 2023, order to provide that the Londons' depositions (should Federal seek them) will take place either in Florida or remotely, not in New York. (NYSCEF No. 399 at 20.) They argue that to be deposed in New York would impose undue hardship on them. The Londons emphasize that they live in Florida, have little connection to New York, and have no plans to visit New York. (See NYSCEF No. 399 at 20.) Allen London also represents that travelling to New York would be difficult for him due to his 2023 hip surgery and his age (mid-seventies). (NYSCEF No. 344 at 1-2.)

Federal urges the court to deny the Londons' request because the Londons have not shown undue hardship. Alternatively, Federal asks that deposition scheduling be deferred until the Londons have completed document production. (See NYSCEF No. 411 at 16-17.).

This court first concludes that Benjamin London has not shown that being deposed in New York would impose undue hardship upon him. Indeed, Benjamin London provides no affidavit on this motion. On the other hand, Allen London does provide an affidavit explaining his physical limitations. That affidavit, however, is dated April 25, 2023. (See NYSCEF No. 411.) It is unclear to the court if those physical limitations (related to his 2023 hip surgery) still remain. (See id. at ¶ 3.) Benjamin London's request that this court's April 2023 order be modified to provide for him to be deposed remotely is denied. Allen London's request for a remote deposition is denied, without prejudice to his filing a motion to renew this request based on current information . Any motion to renew must be brought within 30 days of entry of this order.

II. Motion Sequence 006

On motion sequence 006, Federal moves under CPLR 2221 to reargue the portion of this court's April 2023 decision that denied Federal's request to compel nonparty East 77 Owners Co. LLC to comply with Federal's subpoenas (mot seq 002). (See NYSCEF No. 404 [notice of motion].) Federal also asks the court to resettle the April 11, 2023, decision transcript because it contains a typographical error. The motion is granted.

1. On motion sequence 002, Federal sought to compel East 77 to respond to Federal's subpoenas. This court denied that branch of Federal's motion, however, concluding that East 77 complied with the subpoena in October 2022. (NYSCEF No. 407 at 4 [decision transcript].)

Federal argues that this court erred in failing to consider whether East 77 complied with CPLR 3122 and 22 NYCRR 202.20-c when it provided documents to Federal. Federal notes that East 77 provided a mere paragraph stating general objections and attaching what East 77 said were the "relevant, non-privileged documents in its possession." (NYSCEF No. 157 at 1 [pdf pagination].) Federal also argues that East 77 provided no affidavit from a representative about whether the production is complete or whether East 77 possesses no responsive documents. Finally, Federal contends that although East 77 produced six responsive documents, it has withheld many more.⁴

East 77 does not dispute that it must adhere to CPLR 3122 (a) and 22 NYCRR 202.20-c by delineating, for each document request, that the responsive documents have been produced and asserting the grounds for withholding documents responsive to that particular request. Nor does East 77 argue that it has complied with those obligations. Instead, East 77 asserts that Federal should have, but did not, meet and confer with East 77 about East 77's production. (See NYSCEF No. 420 at 1, citing NYSCEF No. 422.) And East 77 now offers representations from its principal, Arlene Alter, that "[p]roduction of documents in East 77 Owners Co.'s possession, custody or control that are responsive to the individual requests is complete" and that "[t]he only categories of documents that were withheld are privileged documents and agreements that are subject to a confidentiality agreement." (NYSCEF No. 423.) But Alter's affidavit is not compliant with CPLR 2106 and therefore not compliant with 22 NYCRR 202.20-c. (See § 202.20-c [c] [requiring an "affidavit of the responding party stating: (i) whether the production of documents in its possession, custody or control and that are responsive to the individual requests is complete; or (ii) that there are no documents in its possession, custody or control that are responsive to any individual requests"] [emphasis added].)

Federal's motion for leave to reargue is granted. On reargument, the branch of Federal's motion to compel East 77 to comply with Federal's subpoena is granted. Within 30 days of entry of this order, East 77 must submit supplemental responses to the subpoena. East 77 must state, as to each request, whether it has produced the documents in its possession that are responsive to that request or whether it objects to that request on a particular basis. (See 22 NYCRR 202.20-c [a].) In addition, to the extent East 77 possesses documents responsive to the subpoena demands that it believes to be privileged, East 77 must provide a privilege log.⁵ Finally, East 77 must also provide a CPLR 2106-compliant affidavit or affirmation incorporating the noncompliant affidavit.

2. Federal also seeks to resettle the April 11, 2023, decision transcript. The transcript reflects that Federal alleged that Wolson (attorney for STA) and Friedman (attorney for East 77) "might have worked together to conflate a consent judgment against Wolfson and the other co-defendants to be later enforced against Federal because it seems against Wolfson's client, S.T.A., to increase the value of the consent judgment." (NYSCEF No. 407 at 6 [emphasis added].) Federal argues that the transcript should state "inflate a consent judgment" and that the transcript should be resettled accordingly. This branch of Federal's motion is granted without opposition.

III. Motion Sequence 007

On this motion, Federal moves to compel STA to produce unredacted copies of documents requested in discovery. STA argues that (i) the documents consist of communications privileged under the common-interest doctrine; (ii) the communications cannot be disclosed due to confidentiality agreements; and (iii) the document requests are too broad and insufficiently particular in any event.⁶ STA cross-moves to vacate Federal's demands. Both the motion and cross-motion are granted in part and denied in part.

A. Privilege

Federal seeks unredacted disclosure of emails and other documents reflecting communications between Wolfson and Friedman, which STA has withheld on grounds that they are "[c]ommunications with co-counsel under Joint Prosecution Agreement concerning litigation strategy and related work product in connection with the Insurance Coverage Actions." (NYSCEF No. 480 [privilege log] [Docs. Category # 1].) STA withholds these documents on the asserted ground of the common-interest doctrine.

Federal argues that the attorney-client privilege does not shield communications between Wolfson and Friedman because they represent different parties—i.e., Wolfson represents only STA, and Friedman represents only East 77. (See NYSCEF No. 468 at 16.) Federal does not dispute, however, that the communications would otherwise constitute protected attorney-client communications. (See id. at 17.) The question then becomes whether it matters here that the communications are between attorneys for different clients.

1. STA argues that under the common-interest doctrine, it is irrelevant for privilege purposes that Wolfson and Friedman represent different clients. This doctrine is "a related, but distinct, exception to the general rule that the presence of a third party destroys any claim of privilege: where two or more clients separately retain counsel to advise them on matters of common legal interest." (Ambac Assur. Corp. v Countrywide Home Loans, Inc., 27 NY3d 616, 625 [2016] [emphasis in original].) The common-interest doctrine "requires that: (1) the underlying material qualify for protection under the attorney-client privilege, (2) the parties to the disclosure have a common legal interest, and (3) the material must pertain to pending or reasonably anticipated litigation for it to be protected." (Kindred Healthcare, Inc. v SAI Glob. Compliance, Inc., 169 AD3d 517, 517 [1st Dept 2019].)

Federal argues that the common-interest doctrine does not apply because (1) STA and East 77 are not parties to a current or anticipated lawsuit; and (2) STA and East 77 share no common legal interest. (See NYSCEF No. 468 at 18-19.) On the first point, Federal contends that STA and East 77 agreed in their assignment agreement that "STA alone would sue the various insurers; [that] only if STA abandoned the pursuit could E77 elect to substitute in and take the mantle"; and therefore that STA and East 77 could never be co-litigants as required for the doctrine to apply. (Id. at 18.) On the second point, Federal asserts that STA and East 77's alleged collusion is the basis only for a financial interest, not a legal one. (See id. at 18-19.)

In arguing that the common-interest doctrine applies, STA notes it agreed with East 77 jointly to prosecute claims against Federal for indemnification, and also to protect privileged communications. (See NYSCEF No. 491 at 14; see NYSCEF No 135 at § 4.1 [assignment agreement].) STA also argues that the communications and documents between East 77 and STA were shared with one another when litigation was anticipated or pending—i.e., when STA began demanding indemnification from the various insurance companies. (See NYSCEF No. 491 at 15.) Accordingly, STA says, the communications and documents need not be disclosed.

The court agrees that the communications and documents exchanged between East 77 and STA are covered by the common-interest doctrine. In Ambac, the Court of Appeals "did not weigh in on what will constitute a common legal interest." (Combe Inc. v Twin City Fire Ins. Co., 2024 Slip Op 51478[U], *6 [Sup Ct, NY County 2024], citing Ambac, 27 NY3d at 630 n 4.) Although Ambac highlighted co-litigants as the prime example of parties with a common legal interest, it did not foreclose the possibility that other sorts of common legal interests exist. Here, the assignment agreement reflects that STA would sue insurance companies (like Federal) on its own behalf and on behalf of East 77. This is sufficient to create a common legal interest between STA and East 77. (See Matter of Part 60 RMBS Put-Back Litig., 161 AD3d 436, 436-437 [1st Dept 2018] [holding that common-interest doctrine applies between nonparty certificate holders and securities administrators when certificate holders were subject to "no-action" clause under which administrators were designated to pursue their claims].) This is also sufficient to establish that the parties reasonably anticipated litigation—such as STA's lawsuit against Federal. (See Elmrock Opportunity Master Fund I, L.P. v Citicorp N. Am., Inc., 162 AD3d 569, 569 [1st Dept 2018] [holding that "common interest agreement was entered into in reasonable anticipation of litigation" when "plaintiff allege[d] that defendants breached their duty to protect its interests by failing to 'commence litigation to establish' the parameters of the appraisers' valuation determinations"].)

2. There is still more to the inquiry, however. Federal argues that even if the documents are protected by the common-interest doctrine, they must be disclosed under the crime-fraud (or wrongful act) exception to the attorney-client privilege. (See NYSCEF No. 468 at 19.) This exception ousts protection for documents otherwise shielded by the attorney-client privilege if the communications were "in furtherance of a fraudulent scheme, an alleged breach of fiduciary duty or an accusation of some other wrongful conduct." (Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 1 AD3d 223, 224 [1st Dept 2003].)

Federal points to three reasons why the crime-fraud exception applies. Federal alleges that STA and East 77 knowingly submitted false evidence to the 2013 court, thereby inflating the damages East 77 recovered from STA. (See NYSCEF No. 468 at 21.) Federal argues that STA and East 77 concealed their financial goal from the 2013 court: that STA would receive 40% of the proceeds from the judgment that STA purportedly was to pay East 77. (See id. at 22-24.) And Federal contends that "attorneys for STA and E77 executed a straw payment scheme under which settlement money from the non-scheming defendants was briefly funneled through STA on its way to E77, so that STA could later claim . . . that it 'paid' $1,000,000, filling the gap, and triggering the Federal policy." (Id. at 25.)

In response, STA claims that the crime-fraud exception applies only to fraud currently being perpetuated and that "[a]ll of the allegations that Chubb makes to support its crime-fraud argument involve alleged wrongdoing that occurred in the past at the time of or prior to the Judgment." (NYSCEF No. 491 at 17.) STA further argues that Federal's allegations of concealing the assignment agreement are false because the underlying court knew that the STA-East 77 assignment agreement existed. (See id., citing NYSCEF No. 141 n 2 [2013 decision].) STA says it "has already produced all documents and communications shared between counsel for STA and counsel for E77 prior to the Judgment." (Id. at 17.)

The party invoking the crime-fraud exception must demonstrate probable cause to believe that the wrongdoing occurred. (See South Shore D'Lites, LLC v First Class Prods. Group, LLC, 193 AD3d 471, 471 [1st Dept 2021].) The First Department has already affirmed this court's conclusion that "evidence identified by Federal raises triable issues of fact as to whether plaintiff insured and nonparty East 77 Owners Co., LLC colluded with one another to obtain an inflated judgment in favor of East 77 which would trigger Federal's excess insurance policy." (S.T.A. Parking Corp., 247 AD3d at 549.) Moreover, in Federal's view, the alleged fraud is ongoing: The 2013 judgment is one step of the alleged collusion, not the last step (which would presumably be to seek indemnification from Federal). And other than to strategize about the current litigation (which is an outgrowth of that alleged scheme), it is unclear why East 77 and STA would need to protect their communications. (See Ulico Cas. Co., 1 AD3d at 224 [holding that "[t]estimony regarding conversations between principals of nonparty appellants and a member of the firm as well as the settlement of a related federal action" supports conclusion that "probable cause exists that a fraud was attempted or committed and that the communications were in furtherance thereof"] [internal quotation marks omitted].) The crime-fraud exception is therefore applicable.

Still, the court must determine which of the communications and documents at issue are subject to the exception as made or used in furtherance of the alleged fraudulent scheme. The court therefore directs STA to provide its communications with East 77 (and those between Wolfson and Friedman) (the Category # 1 documents) for in camera review within 30 days of entry of this order. (See Matter of New York City Asbestos Litig., 109 AD3d 7, 12 [1st Dept 2013].)

On in camera review, the court will determine, for each document, whether the common-interest doctrine applies and, if so, whether the crime-fraud exception ousts that protection.

B. Confidential Settlement Agreements (and Related Documents)

Federal claims that STA is improperly withholding insurance settlement agreements between STA/East 77 and nonparty Golden Vale's insurers, AXIS and General Star (and communications related to those agreements). According to Federal, those documents should be produced, notwithstanding any confidentiality provisions, because they are "are relevant to Federal's counterclaims seeking declarations that Federal has no duty to satisfy the judgment." (NYSCEF No. 468 at 12.)

STA argues that Federal's "[d]emands Nos. 48, 49, 50, and 51, and/or production of communications between STA's counsel and E77's counsel concerning those settlements (what is being sought in the Chubb Motion to Compel) would potentially put STA at risk of a claim that it breached those settlement agreements."⁷ (NYSCEF No. 491 at 10.) STA further contends that the settlement agreements—which were executed after the 2013 judgment—have no bearing on Federal's collusion allegations. (See id. at 8.) STA concedes, however, that the amount of each settlement is relevant to this action to the extent Federal seeks a setoff based on payments STA received from AXIS and General Star. STA has agreed to release that information. (See id. at 9-10.)

The court agrees with Federal that the settlement agreements must be disclosed. The AXIS and General Star settlement agreements and the communications surrounding those agreements are highly relevant to this action, because this action is the outgrowth of those settlements. (See Masterwear Corp. v Bernard, 298 AD2d 249, 250 [1st Dept 2002] [holding that a settlement agreement may not be withheld notwithstanding confidentiality requirement when the agreement is material and necessary to the movant's case].) This action seeks, consistent with the assignment agreement, indemnification from Federal for the damages awarded to East 77 against STA that AXIS and General Star have not already covered. The settlement agreements and related communications are thus necessary to enable Federal to ascertain the full scope of the asserted scheme built around the assignment agreement. Within 30 days of entry of this order, STA must serve on Federal the settlement agreements and the communications related to those agreements. (These materials encompass the privilege log "Category 3" documents [see NYSCEF No. 480], plus documents responsive to demand nos. 47-48 and 50-51, discussed infra).

C. Particularity and Breadth

Federal argues that STA has improperly refused to respond to document demand nos. 24, 25, 27, 28, 42, 47, 48, 50, and 51 and interrogatory nos. 5 and 6. STA argues that the demands are too broad and vague—specifically because they lack temporal scope. (See NYSCEF No. 491 at 11.) STA also contends that some of the demands "purport to include defined terms by placing words in quotation marks, but without actually defining the terms." (NYSCEF No. 491 at 11.) On reply, Federal says that their requests have temporal limitations: "[E]ach request concerns events that are themselves time-limited, for instance, requests for all documents concerning the AXIS settlement (2016) and General Star settlement (2021)." (NYSCEF No. 492 at 3 n 7.)

On demand nos. 24 and 25, Federals seeks (1) "joint-prosecution agreements" (referred to at ¶ 4.1 of the assignment agreement) and related documents; and (2) contingency-fee agreements between STA and East 77. (See NYSCEF No. 475 at 7 [pdf pagination].) To the extent STA seeks the agreements themselves, the court agrees that STA must produce them. The term "joint prosecution agreement" is referenced in the assignment agreement to which STA is a signatory. STA should therefore have knowledge of the meaning of that term. (See NYSCEF No. 135 at ¶ 4 [a].) And the requests are sufficiently narrow. To the extent Federal seeks documents related to the joint-prosecution agreement, however, Federal must reformulate its request. As it stands, that request is too broad.

On demand nos. 27-28, Federal seeks "all communications" between STA and East 77 and their attorneys related to Rules 1.5 (b), (c), and (g) (1) and (2) of the New York Rules of Professional Conduct.⁸ (NYSCEF No. 475 at 7 [pdf pagination].) These demands are too broad. STA need not respond to demand nos. 27-28.

On demand no. 42, Federal seeks "[a]ll communications between STA and East 77, including but not limited to counsel for both/either, concerning the Insurance Coverage Actions." Like demand nos. 27-28, this request is too broad. STA need not respond to this request.

On demand nos. 47-48, Federal seeks all documents concerning the AXIS settlement and all communications between STA and AXIS about the settlement and its negotiations. On demand nos. 50 and 51, Federal makes the same requests with respect to the General Star settlement. STA must produce these documents.

On interrogatory nos. 5 and 6, Federal seeks responses on "whether the Fee Agreement applies to the representation of STA in the instant action" and if so, whether STA "contend[s] that the Fee Agreement complies with NY R. Prof. Conduct 1.5(g)(1)?" (NYSCEF No. 476 at 3.) The interrogatories define "fee agreement" as the "contingency fee-sharing agreement identified in Paragraph 4(a) of the East 77 Assignment Agreement." (Id. at 2.)

The court concludes that these interrogatories are not too broad (whether temporally or otherwise). And the definition for "fee agreement" provides enough clarity for STA to understand the meaning of the interrogatories. STA must therefore respond to these interrogatories.

III. Motion Sequence 008

STA moves to compel Federal to produce communications Federal has withheld as privileged; provide a verification for Federal's interrogatory responses; and produce supplemental responses to STA's document demands. The motion is granted in part and denied in part.

A. Privilege

STA demands that Federal turn over the withheld documents (spanning from March 2006 through October 2016), which encompass 1,127 communications among attorneys Judith Goodman, Cheryl Jones, Todd McCauley, Melina McCauley, Brooke A. Tanner, Richard Bakalor, Ying Hua Huang, and Hilary Hughes and Federal personnel Dennis Chen, Joanne McGunnigle, and Lisa Trento. (See NYSCEF No. 496 at 20 [privilege log].⁹ )

1. According to STA, documents predating September 3, 2015—when Federal denied STA's indemnification claim—cannot be privileged because they were not created in anticipation of litigation. (See NYSCEF No. 499 at 10-11.) STA also argues that documents prepared as part of the insurer's regular course of business in determining whether to pay or reject a claim are discoverable; and that the attorneys assigned to analyze the insurance claim for Federl were working as claim analysts and not as attorneys. (Id. at 11-13.)

Federal argues that the attorneys were hired to provide legal advice to Federal and therefore that communications exchanged within the scope of those attorney-client relationships are shielded by the attorney-client privilege and work-product doctrine and as materials created in anticipation of litigation.¹⁰ (NYSCEF No. 502 at 4.) Federal also contends that Federal did not retain those attorneys for "ordinary" claims but rather in connection to and in anticipation of coverage lawsuits arising from the underlying incident, the first of which was brought in 2008.¹¹ (Id. at 4-6.)

The court agrees with STA in part.

A party invoking the attorney-client privilege must show that the communications it seeks to protect are "confidential communications between a lawyer and client relating to legal advice sought by the client." (Matter of Nassau County Grand Jury Subpoena Duces Tecum Dated June 24, 2003, 4 NY3d 665, 678 [2005].) Similarly, a party arguing that a document is privileged as "prepared exclusively in anticipation of litigation or constitutes attorney work product" must "identify[ ] the particular material with respect to which the privilege is asserted and establish[ ] with specificity that the material was prepared exclusively in anticipation of litigation." (Ural v Encompass Ins. Co. of Am., 97 AD3d 562, 566 [2d Dept 2012] [internal citation omitted], abrogated on other grounds by Taggart v Costabile, 131 AD3d 243 [2d Dept 2015].)

Federal's opposition relies on an attorney affirmation. (See NYSCEF No. 502.) That affirmation represents only that in light of the numerous insurance-coverage suits involving East 77, Federal hired "Todd McCauley, of the Law Office of Todd M. McCauley, LLC; Richard Bakalor of Quirk & Bakalor P.C.; and Judith Goodman of Goodman & Jacobs LLP in March 2006, April 2006, and March 2014, respectively" and that "[t]hey were hired to represent the interests of, and provide legal advice to, Federal." (Id. at 4.) Federal provides no affidavit on personal knowledge explaining why the communications it has withheld are privileged. (See Ural, 97 AD3d at 566 [holding that a conclusory attorney affirmation is insufficient to demonstrate that the material sought constitutes attorney work product or is made in anticipation of litigation].) Nor does any affiant explain what sort of communications Federal personnel had with the attorneys—i.e., whether they pertained to legal advice (privileged) or investigation of the indemnification claim in Federal's regular course of business (not privileged).¹² (See Brooklyn Union Gas Co. v Am. Home Assur. Co., 23 AD3d 190, 191 [1st Dept 2005] ["Documents prepared in the ordinary course of an insurance company's investigation to determine whether to accept or reject coverage and to evaluate the extent of a claimant's loss are not privileged, and, therefore, discoverable."].)

There is one exception here: communications between attorney Judith Goodman and Federal personnel. STA has previously conceded that Federal hired Goodman "to perform a ground-up review of STA's files in connection with the underlying litigation and attendant coverage actions." (NYSCEF No. 332 at 4 [memo of law on mot seq 004].) Goodman's review entailed legal analysis and the proffering of legal advice to Federal. The court therefore concludes that Goodman's communications are privileged and need not be disclosed. As for the communications Federal had with the remaining attorneys, Federal must produce those documents to STA within 30 days of entry of this order.

2. STA argues that Federal put the communications with monitoring counsel at issue, rendering them discoverable even if they are privileged. STA says the communications are at issue, because Federal "interposed issues of fraud and collusion in the instant lawsuit."¹³ (NYSCEF No. 513 at 9; see also NYSCEF No. 499 at 18.) This argument is unpersuasive.

The at-issue waiver applies "when a party affirmatively places the subject matter of its own privileged communication at issue in litigation," such that "application of the privilege would deprive the adversary of vital information" needed to ascertain the validity of the proponent's claims or defenses. (Ambac Assur. Corp. v DLJ Mortg. Capital, Inc., 92 AD3d 451, 452 [1st Dept 2012] [internal quotation marks omitted].) Conversely, "no 'at issue' waiver is found where the party asserting the privilege does not need the privileged documents to sustain its cause of action." (Id. [quotation marks omitted].)

There is no reason to believe that Federal plans to use its own privileged communications to support its claims and defenses. (See IDT Corp. v Morgan Stanley Dean Witter & Co., 107 AD3d 451, 452 [1st Dept 2013] [holding that "[a]lthough the privileged information sought by defendant is relevant to plaintiff's fraud claims," the waiver did not apply because "plaintiff disavow[ed] any intention to use privileged materials and defendant fail[ed] to show that the materials are necessary to determine the validity of the claims or to its defense against them"].) That those emails might be helpful to STA's defense does not mean that Federal has put them at issue for purposes of supporting its fraud/collusion arguments. STA's at-issue-waiver contention is unavailing.

B. Interrogatory Verification

STA argues that Federal's interrogatory responses were not properly verified, as required by CPLR 3133 (b). In opposition, Federal argues that it has since provided a new interrogatory verification to STA. (See NYSCEF No. 502 at 7.) On reply, STA argues that the verification page is not compliant with CPLR 2106. (See NYSCEF No. 513 at 10-11.) However, neither STA nor Federal attaches a copy of the verification here. This court thus has no way of telling whether the verification is (or is not) CPLR 2106-compliant. This branch of STA's motion is denied without prejudice.

C. Document Demands

STA argues that Federal has not sufficiently responded to several of its document demands—demand nos. 2, 13, 14, 16, and 17.

On demand no. 2 STA seeks "the complete underwriting file(s) pertaining to the Federal Policies, including all documents" used to prepare, negotiate, or issue the Federal policies. (NYSCEF No. 495 at 10-11 [pdf pagination].) STA argues that the underwriting information is discoverable because that information is relevant for interpreting ambiguous policy provisions and that underwriting files are not made in anticipation of litigation. (NYSCEF No. 499 at 16; see NYSCEF No. 513 at 7.) Federal argues that the underwriting files are irrelevant here, because allegations of bad faith are absent and there are no ambiguous policy provisions at issue. (NYSCEF No. 502 at 8.)

The court agrees with Federal. Although the underwriting files were not made in anticipation of litigation, STA does not identify any ambiguous policy provision whose interpretation would be clarified by the underwriting files. Nor does STA otherwise show how the underwriting files are relevant to this action or that the information it seeks is not available from other sources. (See Allied World Ins. Co. v Natl. Union Fire Ins. Co. of Pittsburgh, PA, 204 AD3d 512, 513 [1st Dept 2022] [affirming denial of motion to compel underwriting file when "[t]he policy language was unambiguous and the other discovery sought by plaintiff was available through other sources"].)

On demand nos. 13 and 14, STA seeks all contracts under which Federal reinsured risks covered by the Federal policies or that may provide reinsurance for the insurance coverage or indemnification claims; and also documents reflecting communication between Federal and its reinsurers. (See NYSCEF No. 495 at 12 [pdf pagination].) STA argues that these requests are "relevant to the claims and defenses asserted in the instant action because there are affirmative defenses asserted by both parties concerning proper notice, date of occurrence, and Chubb's assertion that it did not consent to the E77 Settlement." (NYSCEF No. 499 at 17.) Federal asserts that "[n]either Federal policy was reinsured, so Federal is not in possession, custody, or control of any documents responsive to STA's request." (NYSCEF No. 502 at 7.) On reply, STA asks that the court direct Federal to provide a Jackson affidavit to support its assertion.

Given the hotly disputed nature of this action, the court concludes that Federal should (within 30 days of entry) submit to this court an affidavit on personal knowledge attesting to the lack of reinsurance.

On demand no. 16, STA seeks "all documents concerning [Federal's] establishment of reserves with respect to the Claim." (NYSCEF No. 495 at 13 [pdf pagination].) Insurance Law § 1303 provides that an insurer must maintain reserves—enough funds to cover unpaid losses or claims for which it might be liable. STA argues that reserve information "is relevant in coverage cases such as this, where, as here, there are affirmative defenses concerning notice, date of occurrence, and Chubb's assertion that it did not consent to the E77 Settlement." (NYSCEF No. 499 at 17.) STA also contends that whether Federal established a reserve is relevant to whether and when Federal reasonably anticipated litigation. (See NYSCEF No. 513 at 8.)

In opposition, Federal argues that reserve information is irrelevant to this breach-of-contract case. Instead, Federal says, the "key issues are: (1) whether the judgment is illegitimate; (2) whether STA's collusion voids coverage; and (3) whether other insurers have already covered the judgment." (NYSCEF No. 502 at 7.) Federal further contends that the reserve information is protected as attorney work product and as material created in anticipation of litigation. (Id. at 8.)

This court agrees with Federal. It is unclear, on this record, why documents concerning the funds Federal might have reserved to cover liabilities incurred by STA are relevant here. STA does not explain why the date on which damage occurred and whether STA properly provided notice to Federal or consented to the assignment agreement are connected to the reserve information. Federal need not respond to this demand. And this court is unpersuaded that information about reserves is more reasonably calculated than other possible discovery requests to enable STA to make determinations about when Federal anticipated litigation. Federal need not respond to this demand.

On demand no. 17, STA seeks claim manuals, rules, and regulations that Federal uses when handling excess liability claims. (See NYSCEF No. 495 at 13 [pdf pagination].) STA argues that these documents are relevant because (1) the documents pertain to Federal's ordinary course of handling a claim when a policyholder has no primary insurance; (2) Federal asserts coverage-related defenses in its answer to the complaint; and (3) the documents will help interpret ambiguous policy provisions. (NYSEF No.499 at 17.) Federal argues that no ambiguous policy provisions are at issue here and that this court has already held that the policy itself dictates what happens when the policyholder has no primary insurance. (NYSCEF No. 502 at 8.)

This court agrees with Federal. STA does not identify any ambiguous policy provision whose interpretation requires examination of the claims manuals and rules. And this court has already ruled on when the Federal policies are triggered. (See NYSCEF No. 44 at 16-22 [decision transcript on mot seq 001].) Federal need not produce the claim manuals or other rules.

V. Motion Sequence 009

On this motion, Federal moves to disqualify Russell Wolfson, Esq., and his law firm, Venable LLP, from representing STA, based on the advocate-witness rule. STA opposes the motion and cross-moves for Part 130 sanctions. (See 22 NYCRR 130-1.1.) The motion and cross-motion are denied.

Federal argues that Wolfson is a necessary witness in this action because of his alleged involvement in the coverage scheme and therefore must be disqualified under the advocate-witness rule. (NYSCEF No. 515 at 13-15.) Federal further argues that Venable should be disqualified. Federal says that Wolfson's conflict is imputable to Venable, in that his testimony in this action will likely be prejudicial to STA. (Id. at 16.)

The court is not persuaded that disqualification is required or appropriate here.

Rule 3.7 (a) of New York's Rules of Professional Conduct "provides that '[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact.' " (Matter of Diet Drug Litig., 180 AD3d 483, 483 [1st Dept 2020], quoting 22 NYCRR 1200.0, Rule 3.7 [a].) Rule 3.7 (b) (1) provides that the conflict is imputed to other lawyers in the lawyer's firm when "it is apparent that the testimony may be prejudicial to the client."

A court may, in its discretion, disqualify counsel when confronted with an advocate-witness problem. (See De Luca v De Luca, 241 AD3d 1146, 1147 [1st Dept 2025].) The court should disqualify an attorney "only when his or her testimony is necessary to prove the issues in dispute." (Id. at 1148; see Rules of Professional Conduct 3.7.) Testimony "may be relevant and even highly useful but still not strictly necessary," taking into account "factors as the significance of the matters, weight of the testimony, and availability of other evidence." (S & S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 NY2d 437, 446 [1987].)

A court will be hesitant to disqualify counsel when the movant makes this request after undue delay, especially on the eve of trial. (See Natiello v Natiello, 209 AD2d 389 [2d Dept 1994] [holding that "[t]he husband's delay of almost a year in bringing the matter to the court's attention supports a finding that the motion, which was made on the eve of trial, was made in bad faith, in order to delay the proceedings, or to secure a tactical advantage"]; cf. Alicea v Bencivenga, 270 AD2d 125, 126 [1st Dept 2000] ["As the motion to disqualify was not made on the eve of trial, the delay in moving is not a bar to the relief sought, particularly where the conflict is so clear."].)

Wolfson and Venable should not be disqualified from representing STA. STA asserts, and Federal does not dispute, that Federal indicated its intent to pursue a motion to disqualify as early as September 2021; and that much of the evidence on which Federal bases its this motion was available to Federal as early as August 2022. (NYSCEF No. 525 at 5 [STA opposition memo]; NYSCEF No. 53 [letter from September 2021]; NYSCEF No. 529 at 3-4 [Federal's reply memo].) Yet Federal waited until April 2025 to file this motion, leaving open the possibility that this motion is a litigation tactic.¹⁴ (St. Barnabas Hosp. v New York City Health and Hosps. Corp., 7 AD3d 83, 94-95 [1st Dept 2004] ["Plainly, inordinate delay in moving for such relief is an indication that the motion has been made to gain a tactical advantage in the litigation, or for purposes of delay."].)

More important, the court is unpersuaded by Federal's contention that Wolfson is a necessary witness. Although Wolfson's testimony about the events that he was involved in is highly probative, there are other evidentiary sources to which Federal can turn to support its claims. For example, Federal has alleged that East 77's counsel, Robert Friedman, was Wolfson's partner in the wrongdoings; and Friedman can serve as a witness to his dealings with Wolfson.¹⁵ Federal does not identify subjects about which only Wolfson, not also Friedman, would have knowledge. (See Segal v Five Star Electric Corp., 165 AD3d 613, 613-614 [1st Dept 2018] [holding that testimony was not necessary but cumulative when petitioner did not identify specific issues requiring [the attorney's] testimony, the weight of such testimony, or the unavailability of other sources of such evidence"]; Talvy v Am. Red Cross in Greater New York, 205 AD2d 143, 153 [1st Dept 1994], affd, 87 NY2d 826 [1995] ["A witness whose testimony is, at best, cumulative is not a necessary witness."].)

Finally, the court considers the prejudice that disqualification would impose on STA. Wolfson has represented STA in matters relating to the underlying accident since 2008. He therefore has extensive knowledge of the numerous actions arising from that accident—including, most relevantly here, the lengthy, ongoing litigation with Federal. STA thus cannot replace him without expending extensive resources to retain and prepare replacement counsel, which in turn would entail lengthy delays in this action. (See Coast Mar. Co. Ltd. v Holland & Knight LLP, 243 AD3d 468, 469 [1st Dept 2025] [requiring consideration of prejudice of additional costs and arbitration delay in the disqualification analysis].)

Federal's motion to disqualify Wolfson and Venable from representing STA is denied. STA's cross-motion for Part 130 sanctions is also denied. Although the court disagrees with Federal's position on the motion to disqualify, Federal's position was not frivolous.

Accordingly, it is

ORDERED that the branch of the Londons' motion (mot seq 005) seeking leave to reargue that portion of this court's April 11, 2023, order that required the Londons to comply with Federal's subpoenas (mot seq 005) is granted; and it is further

ORDERED that on reargument, the Londons' request to quash the subpoenas for lack of personal jurisdiction due to invalid service is denied; the request to quash the subpoenas as overbroad is granted only with respect to Federal's demands that the Londons provide "[a]ll communications concerning the STA project" and "[a]ll documents concerning the East 77 Property Damage," and otherwise denied; the Londons must respond to the remaining demands in the subpoenas within 30 days of entry of this order; and the Londons' motion to stay enforcement of the April 11, 2023, order is denied as academic; and it is further

ORDERED that on reargument, the court modifies its April 11, 2023, order, to require Federal to reimburse the Londons their reasonable production expenses, including attorney fees incurred in responding to the subpoenas (but not attorney fees incurred in litigating the validity of the subpoenas on motion sequence 002 or motion sequence 005), with the amount of those production expenses to be determined by motion made on notice, filed within 30 days of the Londons' completion of their document production; and it is further

ORDERED that on reargument, Benjamin London's request that this court provide for his deposition to be taken in Florida or by remote means (rather than in New York) is denied; and Allen London's request that this court provide for his deposition to be taken in Florida or remotely is denied, without prejudice to his filing a motion to renew, within 30 days of entry of this order, based on current information about his physical condition or limitations that might pose an undue hardship to appearing in person in New York for deposition; and it is further

ORDERED that the branch of Federal's motion (mot seq 006) seeking leave to reargue that portion of this court's April 11, 2023, order that denied Federal's request to compel East 77 to comply with Federal's subpoenas is granted; and it is further

ORDERED that on reargument, Federal's request to compel East 77 to comply with Federal's subpoena is granted, and within 30 days of entry East 77 must provide supplemental responses to the subpoena that include all of the information and materials directed above; and it is further

ORDERED that the branch of Federal's motion (mot seq 006) seeking to resettle the transcript of this court's April 11, 2023, oral decision delivered on the record is granted as set forth above; and it is further

ORDERED that Federal's motion (mot seq 007) to compel STA to respond further to Federal's discovery demands, and STA's cross-motion to vacate those demands (mot seq 007) are both granted in part and denied in part as set forth below:

(i) With respect to the documents that STA withheld from its production and identified as Category # 1 on its privilege log, STA must within 30 days of entry provide those documents to this court for in camera review of whether (i) the documents are shielded by the attorney-client privilege under the common-interest doctrine, and (ii) the crime-fraud exception to the privilege applies

(ii) With respect to the documents that STA withheld from its production and identified as Category # 3 on its privilege log, STA must produce those documents to Federal within 30 days of entry;

(iii) STA must respond to Federal's interrogatory nos. 5 and 6 within 30 days of entry;

(iv) STA must, within 30 days of entry, make a supplemental document production responding to Federal's document demand nos. 24 and 25, but only to the extent that those demands seek "joint-prosecution agreements" and contingency-fee agreements, not also documents related to the joint-prosecution agreements; and

(v) STA must, within 30 days of entry, make a supplemental production responding to Federal's document demand nos. 47, 48, 50, and 51;

and it is further

ORDERED that the branch of STA's motion (mot seq 008) to compel Federal to produce communications that Federal has withheld as privileged (and identified on a privilege log) is granted, except as to communications between Federal and attorney Judith Goodman, and Federal must produce the withheld communications (except those between Federal and Goodman) within 30 days of entry of this order; and it is further

ORDERED that the branch of STA's motion (mot seq 008) to compel Federal to make a supplemental document production responding to STA's demand nos. 2, 13, 14, 16, and 17, is granted only to the extent that Federal must within 30 days provide STA with a Jackson affidavit with respect to demand nos. 13 and 14, and is otherwise denied; and it is further

ORDERED that Federal's motion to disqualify Russell Wolfson, Esq., and the law firm Venable LLP from representing STA in this action (mot seq 009) is denied; and it is further

ORDERED that STA's cross-motion for Part 130 sanctions (mot seq 009) is denied; and it is further

ORDERED that the parties shall appear before this court for a telephonic status conference on June 26, 2026.

DATE 5/11/2026

FOOTNOTES

1.   For a more detailed recitation of the facts, see S.T.A. Parking Corp. v. Federal Ins. Co. (2024 Slip Op 50912[U], *1-11 [Sup Ct, NY County 2024], affd 247 Ad3d 549 [1st Dept 2026]).

2.   The Londons provide no evidence showing that they held themselves out as having their actual places of business in Florida or elsewhere when Federal effected service.

3.   Notably, the Commercial Division rules provide—in the context of ESI discovery—that reasonable production costs include " 'reasonable fees charged by outside counsel and e-discovery consultants' for gathering and reviewing documents for relevance and privilege before production, in addition to those charged by vendors involved in the harvesting and storage of ESI." (Barons Media, LLC v Shapiro Legal Group, PLLC, 231 AD3d 639, 640 [1st Dept 2024], quoting 22 NYCRR 202.70, Appendix A, at VIII.B [Commercial Division Rules]; see also Peerenboom v Marvel Entertainment, LLC, 2026 NY Slip Op 02727, *1 [1st Dept Apr. 30, 2026] [affirming order in Commercial Division action that required the subpoenaing party to reimburse attorney fees as part of the subpoenaed party's reasonable production expenses].)

4.   On reply, Federal argues that it issued the same subpoenas to both Friedman (East 77's counsel) and East 77. Federal says that Friedman's earlier representation to Federal that he is withholding numerous responses to the subpoena Federal issued against him until Federal agrees to pay reasonable production expenses (NYSCEF No. 436 at 4 [pdf pagination]) cannot be reconciled with his affirmation on East 77's behalf that East 77 has provided the responsive documents it possesses. (See NYSCEF No. 420 [Friedman's aff. in opp.].) Federal contends that because Friedman represents East 77, his documents are in East 77's control and must be produced by East 77. (NYSCEF No. 428 at 10.)This court disagrees with Federal. Although Friedman and East 77 might be subject to the same document requests, and Friedman is East 77's attorney, the control Friedman has over his own documents cannot be imputed to East 77. It would be impracticable to say that if Friedman has control over a document, then East 77 has control over that document. What is more accurate to say is that to the extent Friedman maintains certain documents on East 77's behalf, Friedman must disclose those documents.

5.   Federal also requests, on reply, that this court hold a hearing for East 77 and Friedman to testify to their efforts to locate responsive documents and that the court order Friedman and East 77 to each file Jackson affidavits detailing their search efforts. (NYSCEF No. 428 at 12.). Given the court's conclusion that East 77 must supplement its production, the court does not reach this request at this time.

6.   STA also contends that Federal did not make a good faith effort to meet and confer with STA to resolve the parties' discovery disputes or submit an affidavit of demonstrating that good faith, as required. (See 22 NYCRR 202.7.) The court is unpersuaded that a meet-and-confer would have yielded fruitful results here. The court declines to deny the motion on this basis.

7.   STA does not appear to argue that the settlement agreements should be protected as attorney work product. (See NYSCEF No. 491 at 9-10.)

8.   Rule 1.5 (b) concerns an attorney's obligation to communicate the scope of the representation and fee rates to the client. Rule 1.5 (c) permits an attorney to charge a contingency fee (unless otherwise prohibited) so long as the attorney explains the fee structure to the client in writing. Rule 1.5 (g) governs the division of legal fees between attorneys who are not part of the same firm.

9.   STA contends that Federal's privilege log does not identify the documents that were withheld completely "and also fails to specify which privilege bases apply to which redactions in the more than 2,000 pages of material that it did produce." (NYSCEF No. 499 at 1.) This would require Federal to itemize each document and specify the basis for withholding or redacting it. But the parties agreed to provide each other with categorical privilege logs. That type of log would not require Federal to identify particular redacted documents. (See NYSCEF No. 509 at 2 [agreement].) In addition, STA provided Federal with its own categorical privilege log. (See NYSCEF No. 480.)

10.   Federal's opposition to this motion does not contend that STA's document requests are too broad.

11.   In 2008, STA brought a coverage against its primary insurer, nonparty Lancer Insurance Co. (See Index No. 108091/2008). In that action Supreme Court (Carol Edmead, J.) held "that Lancer was not obligated to indemnify STA because STA had known of the potential losses due to its construction project when it took out the Lancer policy." (S.T.A. Parking Corp., 2024 Slip Op 50912[U], *8, citing S.T.A. Parking Corp. v Lancer Ins. Co., 2011 WL 11166186 [Sup Ct, NY County Dec. 22, 2011].) That order was affirmed on appeal. (See S.T.A. Parking Corp. v Lancer Ins. Co., 110 AD3d 512 [1st Dept 2013].) After losing in that action, STA began to seek indemnification from Golden Vale's insurer and excess insurer (AXIS and General Star, respectively) and Federal.

12.   Federal tries to avoid this evidentiary problem by imposing the burden of proving the absence of privilege onto STA. Federal argues that "STA claims, without evidence, that Federal's outside attorneys were just processing insurance claims, a business function, so their communications should not be privileged." (NYSCEF No. 502 at 4.) But the burden is to demonstrate that material is privileged and applies to the one asserting it: Federal.

13.   STA further contends that Federal's "claims of fraud and collusion can easily be rebutted by the Chubb monitoring counsel's contemporaneous reports and communications." (NYSCEF No. 513 at 9.)

14.   It is unclear to the court—and Federal's papers do not clarify—why Federal did not move to disqualify when it moved for leave to amend in January 2023. (See NYSCEF No. 162 [proposed OSC on mot seq 004].)

15.   Federal argues that although it might choose to depose STA's principal, the principal might not have personal knowledge of the communications between Wolfson and Friedman. (See NYSCEF No. 529 at 6.) Whether the principal knows about those communications, though, has little bearing when Federal can call Friedman to testify.

Gerald Lebovits, J.