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Koramblyum v. Medvedovsky2/10/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Defendants Mark Medvedovsky and Faya Medvedovsky move and defendant Alex Meved cross-moves, pursuant to CPLR 2304, for an order quashing a deposition subpoena served upon Nick Calise, a non-party, and for a protective order pursuant to CPLR 3103(a), (1) prohibiting the plaintiffs from deposing Nick Calise, or anyone else from Nixx Investigations (Nixx) or from calling either Nick Calise or anyone else from Nixx as a trial witness, and (2) barring plaintiffs from using at trial, for any purpose, any materials prepared by Nixx, on the ground that any such materials, and any deposition or trial testimony referring to or based upon same, are privileged pursuant to CPLR 3101(d), which protects from disclosure any materials prepared "in anticipation of litigation." Plaintiffs Victoria Koramblyum, as mother and natural guardian of Sabrina Koramblyum, and Victoria Koramblyum, individually, oppose the instant motion on the grounds that (1) the subject materials were not prepared solely for the purpose of the instant litigation, and (2) even if the claimed privilege applies to said material, such privilege was, in any event, waived upon the prior disclosure of the material to all parties in a related rescission action, without any reservation by defendants of the privilege they now assert.
In the instant action, plaintiffs seek damages for injuries allegedly sustained by Sabrina Koramblyum on February 18, 2001, when she was bitten by a dog while visiting the defendants at their residence. On March 9, 2001, Mr. Medvedovsky notified Quincy Mutual Fire Insurance Company (Quincy Mutual), the insurance carrier, of the dog bite incident. Pursuant to said notification, Mr. Medvedovsky informed Quincy Mutual that "the parents of the girl do not claim that they wish to sue us but we wanted to report the incident if they feel otherwise." In February 2002, plaintiffs commenced the instant personal injury action against defendants.
In June 2002, an issue arose concerning the presence of the alleged offending dog at the Medvedovsky residence. Due to this issue, which impacted on coverage of the incident by the carrier, Quincy Mutual commenced an action against the Medvedovskys for rescission of the insurance contract.
During the rescission action, discovery was exchanged by the parties. On August 12, 2003, the Medvedovskys requested the production of the complete Quincy Mutual claims file pertaining to the subject dog bite incident. No objections were made by any party regarding the production of the file and Quincy Mutual was directed, pursuant to a compliance conference order issued on August 12, 2003, to produce the file to all parties. Accordingly, both the Medvedovskys, as well as the plaintiffs in the instant matter, received copies of the contents of the claims file during the pendency of the rescission action.
On March 9, 2001, Quincy Mutual had retained Nixx to investigate the dog bite incident. In the course of said investigation, a representative of Nixx obtained a written statement from Mr. Medvedovsky, dated March 14, 2001, in which he claimed that " e have lived here as long as [our son] has owned the [subject] dog." Said statement was included in the claims file. Also included in the claims file was a report concerning the incident (Incident Report), dated March 22, 2001, which was prepared by Mr. Calise as the result of the investigation, as well as interviews conducted by another Nixx investigator with regard to the incident. The report, contrary to the Medvedovskys' written sta
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