STATE FARM INSURANCE COMPANY v. Laneide Montero, respondent.

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

STATE FARM INSURANCE COMPANY, appellant, v. I. ARACENA-ALMONTE, a/k/a Almonte I. Aracena, et al., defendants, Laneide Montero, respondent.

Decided: May 27, 2008

ROBERT A. SPOLZINO, J.P., EDWARD D. CARNI, THOMAS A. DICKERSON, and RANDALL T. ENG, JJ. Rivkin Radler LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, and Stuart M. Bodoff of counsel), for appellant. Sanford L. Pirotin, P.C., Westbury, N.Y. (William S. Kanas of counsel), for respondent.

In an action, inter alia, for a judgment declaring that the plaintiff is not obligated to defend or indemnify the defendants in an underlying action entitled Montero v. Malik, pending in the Supreme Court, Nassau County, under Index No. 6634/05, the plaintiff appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Lally, J.), entered October 3, 2007, as granted that branch of the motion of the defendant Laneide Montero which was pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against him unless the plaintiff provided him with a copy of its “Claims Procedure Guide.”

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Laneide Montero which was to dismiss the complaint insofar as asserted against him unless the plaintiff provided him with a copy of its “Claims Procedure Guide” is denied.

In this action for a declaratory judgment, the plaintiff alleged that an automobile collision was intentional and not an accident.   The defendant Laneide Montero (hereinafter the defendant) failed to establish the relevancy of the plaintiff's “Claims Procedure Guide” to the issues to be decided in this action.   Since the defendant was not entitled to discovery of such document, the Supreme Court erred in granting that branch of his motion which was pursuant to CPLR 3126 to dismiss the complaint insofar as asserted against him unless the plaintiff provided him with the document (see Donskoi v. Donskoi, 38 A.D.3d 708, 830 N.Y.S.2d 919;  cf. Gilman & Ciocia, Inc. v. Walsh, 45 A.D.3d 531, 845 N.Y.S.2d 124).

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