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  • Ngm Insurance Company v. Dylan Deuser AS ASSIGNEE OF PRECISION CONSTRUCTION & DEVELOPMENT, INC. Commercial - Other (Ins. Policy D/Judgment) document preview
  • Ngm Insurance Company v. Dylan Deuser AS ASSIGNEE OF PRECISION CONSTRUCTION & DEVELOPMENT, INC. Commercial - Other (Ins. Policy D/Judgment) document preview
  • Ngm Insurance Company v. Dylan Deuser AS ASSIGNEE OF PRECISION CONSTRUCTION & DEVELOPMENT, INC. Commercial - Other (Ins. Policy D/Judgment) document preview
  • Ngm Insurance Company v. Dylan Deuser AS ASSIGNEE OF PRECISION CONSTRUCTION & DEVELOPMENT, INC. Commercial - Other (Ins. Policy D/Judgment) document preview
						
                                

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FILED: ERIE COUNTY CLERK 04/23/2018 05:32 PM INDEX NO. 804697/2017 NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 04/23/2018 STATE OF NEW YORK SUPREME COURT COUNTY OF ERIE ___________________-------------____________-________________________ NGM INSURANCE COMPANY, MEMORANDUM OF LAW IN Plaintiff, SUPPORT OF CROSS MOTION FOR PROTECTIVE ORDER PURSUANT TO CPLR § 3103 (a) Index No.: 804697/2017 DYLAN DEUSER AS ASSIGNEE OF Hon. John L. Michalski, ASCJ PRECISIONCONSTRUCTION & DEVELOPMENT, INC. Defendant. _______________________________________________________________ PRELIMINARY STATEMENT Based upon the applicable facts and law, the Court should grant plaintiff's cross motion for a protective order and preclude defendants Notice to Produce Documents. STATEMENT OF FACTS Petitioner repeats and reaffirms those facts enumerated in the supporting Affirmation of Robert S. Stockton, Esq. and incorporate those facts and exhibits herein together with allexhibits in the Affirmation of Robert S. Stockton, Esq in Opposition to the companion Motion to Compel. POINT #1 PLAINTIFF'S MOTION FOR PROTECTIVE ORDER IS TIMELY AND PROPER Although defendant assignee issued a Notice to Produce Documents dated November 8, 2017, discussion between legal counsel for the parties resulted in an agreement to abeyance all discovery matters pending the results of mediation except for production of those parts of a claim file dated prior to the denial and disclaimer of insurance coverage to Precision. The initial denial and disclaimer of coverage is dated July 6, 2009. The mediation began in January, 2018 and terminated on March 16, 2018. Thereafter, defendant assignee renewed the demands for Production of f Clients/014010/00218/00469666. DOC; j 1 of 7 FILED: ERIE COUNTY CLERK 04/23/2018 05:32 PM INDEX NO. 804697/2017 NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 04/23/2018 Documents on or about March 21, 2018. Irrespective of the demand dates, plaintiffs Motion for Protective Order is timely and proper. Case law provides that any "demand which is overly broad and burdensome is palpably improper and [respondent] is not foreclosed from challenging its challenge." propriety despite .... failure to make a timely Kern v City of Rochester, 261 AD2 904 (4th Dept. 1999) citing Holness v. Chrysler Corp., 220 AD2d 721; Haller v North Riverside Partners, 189 AD2d 615, 616. It isrespectfully submitted that defendant assignee's demand is both overly broad and burdensome and palpably improper. The application for Protective Order is timely. POINT #II THE NOTICE TO PRODUCE DOCUMENTS IS PALPABLY IMPROPER AS IT SEEKS PRIVILEGED COMMUNICATION AND IS OTHERWISE PREJUDICIAL, OVERLY BROAD, AND BURDENSOME A. PREJUDICE CPLR Section 3103(a), in summary, grants wide authority to the Court to deny, limit, condition, and regulate any disclosure devise so as to prevent unreasonable annoyance, disadvantage, or other prejudice to parties. In this case, it isbeyond dispute that appeal ispending in the underlying liability action in the Appellate Division, Fourth Department. Those appeals may affirm the jury verdict or reverse and remand the claim for a new trial. NGM would suffer severe and irreparable prejudice if Deuser, as plaintiff Assignee was permitted to possess, review and analyze the claim file and legal counsel communications prior to Appellate review and reversal and/or remand. It is arguable that a new trial is highly likely due to fundamental trial error. For the charge to the omitted reference to proof trial of against co- example, jury any during liability defendant, Braun. The charge to the jury only referenced plaintiff's claim that Precision violated Section 133 of the New York State Labor Law (trial record P. 675). Whereas, the trialrecord (Clients/0 I 40l 0/00218/00469666.DOC;) 2 of 7 FILED: ERIE COUNTY CLERK 04/23/2018 05:32 PM INDEX NO. 804697/2017 NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 04/23/2018 establishes that Deuser testified he was employed by Braun or by both Braun and Precision on the date of accident. Similarly, on issues of duty of care, the charge to the jury specifically referenced Precision as the "employer" "employer" including its duty as an to provide a reasonably safe place to work, instruction, warning and supervision. (trialtranscript p. 676). Again, the charge omits any reference to Deuser's claimed or evidentiary proof against Braun as employer. Further, the Appellate Court may deem the verdict sheet to contain fundamental trial errors as itpresented liability issues as against Precision and thereafter directed the jury that if liability is found against Precision, the jurors were to [ignore questions 6-10 on liability against Braun] proceed to damages, (despite evidence of record that Braun was solely performing the work not Precision). The Appellate Court may determine these issues as fundamental error which require reversal and remand for a new trial. See (4th Best v Swann Group Ltd Partnership, 81 A.D.3d 1344 Dept. 2011). See also, Staudacher v. (4th City of Buffalo, 155 A.D. 2d 956 Dept. 1989). It has been held that "this Court may exercise its discretion to order a new trialwhen unpreserved error in a jury charge is fundamental....that is 'so trial.'" significant that the jury was prevented from fairly considering the issues at Vallone v (3"I Saratoga Hospital, 141 A.D. 3d 886 Dept. 2016). These issues in addition to other issues raised on appeal may present the Appellate Court with a need to reverse and/or remand the jury verdict. Under these circumstances, providing Deuser (as adversary) with unfettered access to the entire claim file of NGM is absolutely prejudicial to the rights of the carrier. The underlying case remains in controversy and subject to review on the merits upon appeal. Demand to surrender itsclaim file including trial strategy, records of defense counsel, including analysis and strategy during the pendency of appeal is unquestionably palpably improper and prejudicial. Compelling case law interests." directs that any Court decision on discovery reflect a "discretionary balancing of Andon v { Clients/014010/00218/00469666. DOC; l 3 of 7 FILED: ERIE COUNTY CLERK 04/23/2018 05:32 PM INDEX NO. 804697/2017 NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 04/23/2018 302-304 Mott Street Associates, 94 N.Y. 2d 740. Under our discovery statutes and case law, "competing interest must be balanced; the need for discovery must be weighed against any special party." burden to be borne by the opposing Andon Supra citing Kavanagh v Ogden Allied MaintenanceCorp., 92 N.Y. 2d 954. THE DEMAND FOR DOCUMENT PRODUCTION SHOULD BE DENIED B. THE NOTICE TO PRODUCE IS PALPABLY IMPROPER AND SEEKS PRIVILEGED MATERIAL Deuser currently has a direct action against NGM Insurance Company, Index No. 803499/2017 in the same Court asserting identical claims of "bad faith and violation of GBL Section 349." The counter claims asserted by Assignee, Deuser are identical to those asserted as plaintiff in the prior pending case. Duplicate claims area direct violation of CPLR Section 3211(a)(4) and 321l(a)(6). It isrespectively submitted that a document demand premised upon a defective pleading is palpably improper. It is axiomatic that Deuser is absolutely barred from access to privileged material in the NGM claim file, Index No. 803499/2017. In asserting a counter claim, Deuser seeks a door" claim." "back to access privileged and confidential material through an improper "counter claim.", There is no question that Deuser has multiple claims asserting the same causes of action in the same Court in two (2) different cases. The demand for document production is an improper counter claim should be denied as a matter of law. C. DOCUMENT DEMANDS NUMBERED 1-18 ARE PALPABLY IMPROPER Document demands 1-18 are not only improper, they seek irrelevant documents unrelated to the issue of employer and employee exclusion of coverage and denial coverage in the subject insurance policy# MPV 96674. As clearly stated in the denial of coverage dated May 3, 2013, (Exhibit "G"), employees are not an insured for injuries which occur in the course of employment. Deuser asserted (Clients/014010/00218/00469666.DOC;} 4 of 7 FILED: ERIE COUNTY CLERK 04/23/2018 05:32 PM INDEX NO. 804697/2017 NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 04/23/2018 that he was an employee of Precision for more than two (2) years and was an employee on the date of accident. Therefore, coverage was properly denied at the inception of plaintiff's claim and parties were on notice that there is no liability coverage in the NGM policy for injuries to employees of Precision or coverage for personal actions of Braun not arising out of or in the course of his business.. Deuser, as Assignee of Precision has no greater rights than Precision. Precision's coverage for non-business related activities or injury to an employee is excluded within the terms and conditions of the policy of insurance, and was properly denied on July 20, 2010 and May 3, 2013. "F," (Exhibit "G"). Therefore, a demand for Production of Documents after May 3, 2013, is clearly improper as privileged an attorney client work product. Celani v Allstate Indemnity Company, 155 (4th AD 3d 1524 Dept. 2017). Nicastro v New York Central Mutual Fire Insurance Co., 117A.D.3d (4th 1545 Dept. 2014). Indeed, Deuser as Assignee of Precision concedes "....[in] firstparty claims by an insured against its insurer, the entire claim file generated until such time as coverage is rejected, discoverable..." (" Marcus," is ("Affidavit of p. 4) Therefore, any demand for production of documents in paragraphs 1-18 beyond July 20, 2010 and claimed as privileged attorney work product is not discoverable. Respondent produced the documents in the claim file dated prior to May 3, 2013 "B" (Exhibit of the Deuser Motion). D. DOCUMENT DEMANDS 1-18 ARE OVERLY BURDENSOME, ABUSIVE, INTENDED TO HARASS AND ARE IRREVELENT TO THE ISSUE OF COVERAGE EXCLUSION FOR INJURY TO AN EMPLOYEE IN NGM POLICY # MPV 96674 The disclaimer of insurance coverage to Precision in the underlying liability action relates directly to claim by plaintiff Deuser that as the date of accident he was an employee of Ryan Braun as well as the repeated claims by Braun that the work being done was not that of Precision. f Clients/014010/00218/00469666. DOC;) 5 of 7 FILED: ERIE COUNTY CLERK 04/23/2018 05:32 PM INDEX NO. 804697/2017 NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 04/23/2018 The record establishes that Deuser was employed for approximately two (2) years (Exhibit "A."). In "B" addition, at trial,Deuser claimed Ryan Braun was his employer (Exhibit trial transcript p. 46). The trialjury charge as well as verdict sheet may present issues of fundamental error. These issues do not rise to the level of bad faith or violation of GBL Section 349. Document demands 1-18 are totally irrelevant to the issues giving rise to the denial of coverage. Demands which include claim manuals, reserve history, documents that refer or relate to in any way to the handling of claims generally are intended solely to be overly burdensome, harassment, and abusive. Those demands are completely irrelevant to the issue of the employee exclusion within the NGM policy and the underlying disclaimer of coverage. Deuser as moving party has the burden to establish that "the method of discovery sought will result in the disclosure of relevant evidence or is reasonably claims." calculated to lend to the discovery of information bearing on the Celani, supra, citing (2nd Crazytown Furniture v Brooklyn Union Gas Co., 150 A.D.2 420 Dept. 9 9 CONCLUSION For the foregoing reasons, plaintiff's Motion for a Protective Order should be granted and it is respectfully requested that the Court should issue an Order: (1) dismissing the Notice to Produce Documents; (2) granting a Protective Order for any claim file documents after July 9, 2009; (3) for any and all other relief as the Court deems just and proper. (Clients/014010/00218/00469666. DOC;} 6 of 7 FILED: ERIE COUNTY CLERK 04/23/2018 05:32 PM INDEX NO. 804697/2017 NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 04/23/2018 Dated: April 23, 2018 Respectfully submitted, Troy, New York STOCKTO , BARKER & MEAD, LLP L. B . ROBERT S. STOdKTON, ESQ., ' Attorney for Plaintiff NGM Insurance Company 433 River Street, Suite 6002 Troy, New York 12180 (518) 435-1919 TO: Mr. David Marcus, Esq. Attorneyfor Plaintiff Deuser Marcus & Cinelli, LLP 8416 Main Street Williamsville, NY 14221 (C I iettts/014010/00218/00469666. DOC;) (Clients/014010/00218/00469666. DOC; } 7 of 7