Matos v. Peerless Insurance Company
ORDER granting 18 Motion to Compel; denying 19 Motion for Partial Summary Judgment; granting in part and denying in part 19 Motion to Compel; granting in part and denying in part 26 Motion for Partial Summary Judgment. Signed by Hon. H. Kenneth Schroeder Jr. on 2/2/2017. (KER)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PEERLESS INSURANCE COMPANY,
DECISION AND ORDER
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the
assignment of this matter to the undersigned to conduct all proceedings in this case,
including the entry of final judgment. Dkt. #13.
Yancy Matos, d/b/a Certified Enterprises, LLC, seeks reimbursement
pursuant to an insurance policy for damages to his business premises and contents
following an alleged burglary and fire at 1054 Broadway, Buffalo, New York, on
September 23, 2011. Dkt. #1-1, p.2.
Currently before the Court is: (1) defendant Peerless Insurance
Company’s (“Peerless’”), motion to compel (Dkt. #18); (2) plaintiff’s motion for partial
summary judgment seeking liability on his breach of contract claim and to compel
compliance with discovery demands (Dkt. #19); and (3) defendant’s motion for partial
summary judgment. Dkt. #26. For the following reasons, defendant’s motion to compel
Mr. Powers’ deposition (Dkt. #18), is granted; plaintiff’s motion for partial summary
judgment (Dkt. #19), is denied; plaintiff’s motion to compel (Dkt. #19), is granted in part
and defendant’s motion for summary judgment (Dkt. #26), is granted in part.
Plaintiff purchased the building at 1054 Broadway Street, Buffalo, New
York, on March 4, 2009 for $60,000. Dkt. #22-2, p.7 & Dkt. #31-10, ¶ 9. Plaintiff
purchased the lot in 2010 for $825. Dkt. #31-10, ¶ 9. Plaintiff and his girlfriend, Anita
Rodriguez, operated a custom printing business, Certified Enterprises, Inc., at the
premises. Dkt. #19-8, ¶ 3. Plaintiff improved the premises by renovating the first floor
for the printing business, replacing two furnaces and two hot water heaters, installing
ductwork to heat the third floor, running water to the third floor, and installing a shower
on the second floor. Dkt. #31-10, ¶ 9. The first floor of the building, which was the
largest, was utilized for the printing business; the second floor is used for personal
storage; and the third floor was utilized by kids from the neighborhood to hang out so
that they were off the streets. Dkt. #19-17, pp.5-7.
Peerless issued a business owners policy to plaintiff insuring the property
under policy number 8599022, from January 27, 2011 to January 27, 2012. Dkt. #19-7,
¶ 4. The limit of insurance for the building (replacement cost) is $703,040.00 Dkt. #234. Plaintiff avers that the insurance agent chose the coverage amount. Dkt. #30-5, ¶ 2.
Plaintiff avers that, at approximately 1:30 am on September 23, 2011, as
he was locking the back door of the premises, two individuals came up from behind him
and put a gun to his head. Dkt. #19-8, ¶ 5. The individuals forced plaintiff back inside
the building and one individual demanded that plaintiff lie face down on a couch while
the other individual took possession of two laptop computers and a Play Station 3. Dkt.
#19-8, ¶ 6. The individuals smashed the surveillance equipment, poured gasoline on
the floor, started a fire and ran away. Dkt. #19-8, ¶ 7. Plaintiff called 911 and
emergency personnel arrived to extinguish the fire and investigate the incident. Dkt.
#19-8, ¶ 8. Plaintiff arrived home at approximately 5:00 am. Dkt. #19-8, ¶ 9.
At approximately 8:00 am on September 23, 2011, plaintiff received a
telephone call at his home from NFA manager Angelo Puccio advising that another fire
had been started with gasoline at the back entrance to the building. Dkt. #19-8, ¶ 10.
Mr. Puccio advised that the firefighters extinguished the flames, but failed to sufficiently
secure the entrance after knocking down the door to check inside the building for
flames, allowing thieves to take a television and penny jar and to break open an empty
cash register. Dkt. #19-8, ¶¶ 10-11.
By email dated October 21, 2011, Christian Waddington, Senior
Investigator in the Special Investigations Unit of Liberty Mutual, Peerless’ parent
company, advised Donald Tolhurst, Senior Claims Specialist in the Commercial
Insurance Claims Department for Liberty Mutual Insurance, that
My investigation at this point is complete. I am waiting on
Buffalo fire to get the surveillance from inside. They are in
process of accessing that and will call me. That is the only
hold up. I agree that the circumstances are very odd, but at
the moment, we cannot refute his statement unless he says
something contrary to Buffalo fire, but they are not going to
interview him until they see the surveillance.
Bottom line, at this point we are waiting on Buffalo fire. Just
want you to know that so you can decide if that is cause
enough to hold up his claim.
Dkt. #30-2, p.10.
On February 15, 2012, plaintiff submitted a claim for damages in the
amount of, inter alia, $76,863.30 for the building and $52,459.99 for business personal
property. Dkt. #18-2, p.41 & Dkt. #19-8, p.8. An adjuster assigned by National Fire
Adjustment Co., Inc. (“NFA”), Angelo Puccio, avers that in cases of partial building
losses, such as the instant case, the insurance company
owes the lesser of the amount of insurance; the actual cash
value of the building; or the cost of repair with material of like
kind and quality within a reasonable time after such loss. In
this particular case, since it was a partial building loss and
not a total, and the actual cash value of the building and the
amount of insurance exceeds the cost to repair, the limiting
factor is the cost to repair which is $76,863.30, not the cost
to repair less depreciation of the repairs.
Dkt. #31-11, ¶ 9.
Defendant calculated the replacement cash value of the building at
$49,688.16, the actual cash value of damage to the building at $43,876.14 and the
actual cash value of damage to the building’s contents at $33,701.11. Dkt. #30-2, p.13
& Dkt. #31-5, pp.24 & 26.
The insurance policy provides that Peerless will, at its option, either: (1)
pay the value of lost or damaged property; (2) pay the cost of repairing or replacing the
lost or damaged property; (3) take all or any part of the property at an agreed or
appraised value; or (4) repair, rebuild or replace the property with other property of like
kind an quality. Dkt. #23-4, p.68. The policy provides that Peerless will determine the
value of Covered Property as follows:
d. (1) At replacement cost without deduction for
depreciation, subject to the following:
(a) You may make a claim for loss or
damage covered by this insurance on
an actual cash value basis instead of on
a replacement cost basis. In the event
you elect to have loss or damage settled
on an actual cash value basis, you may
still make a claim on a replacement cost
basis if you notify us of your intent to do
so within 180 days after the loss or
(b) We will not pay on a replacement cost
basis for any loss or damage:
(I) Until the lost or damaged
property is actually repaired or
(ii) Unless the repairs or
replacement are made as soon
as reasonably possible after the
loss or damage.
(c) We will not pay more for loss or damage
on a replacement cost basis than the
(I) The cost to replace, on the same
premises, the lost or damaged
property with other property:
I. Of comparable material
and quality; and
ii. Used for the same purpose; or
(ii) The amount you actually spend
that is necessary to repair or
replace the lost or damaged
Dkt. #23-4, pp.68-69.
By email dated April 27, 2012, Mr. Waddington advised Mr. Tolhurst of the
completion of plaintiff’s Examination Under Oath and opined that there are
no findings or evidence that the insured set the fire. At least
not based on his testimony. We still do not have the
surveillance from ATF. It appears that he was the victim of a
hit. We highly suspect that he was into drugs and might
have been a target of a rival, but cannot prove that he is
withholding that. That being said, we have the following
1) there is no evidence to support any form of a loss of
2) we may have a 15% reduction . . . for partial vacancy.
Only 1 out of 4 floors were being used by the insured
3) we are looking at negating the entire contents claim since
the policy is for Yancy and Yancy owns the building. The
business is owned by Anita and she is not an insured.
Dkt. #30-2, p.11.
By letter dated January 21, 2013, Peerless disclaimed liability and denied
coverage for plaintiff’s claim due to dishonesty and fraud, “including but not limited to
statements as to the cause of the damage to the subject property.” Dkt. #19-10, p.8.
Peerless also disclaimed due to plaintiff’s failure to cooperate with the investigation of
the claim, including his failure to answer questions truthfully during the examination
under oath. Dkt. #19-10, p.8. Peerless also claimed breach of a policy provision
precluding payment for loss or damage under certain circumstances where the building
was vacant. Dkt. #19-10, p.8.
Plaintiff sold the premises for $46,000 on May 21, 2013. Dkt. #31-10,
¶ 10. Plaintiff avers that he sold the property because of the traumatic memories of the
incident on September 23, 2011 and because he was unable to repair the property due
to defendant’s refusal to provide him with insurance proceeds. Dkt. #31-10, ¶¶ 3 & 5-7.
Plaintiff commenced this action in New York State Supreme Court, County
of Erie on July 1, 2013. Dkt. #1-1. It was removed to this Court based upon diversity of
citizenship on February 21, 2014. Dkt. #1. Plaintiff alleges a single cause of action for
breach of the insurance policy. Dkt. #1-8.
Plaintiff noticed a 30(b)(6) deposition of an employee of Peerless who
could testify regarding, inter alia, the following subjects: (1) the decision to deny
plaintiff’s insurance claim; (2) the investigation into plaintiff’s claims including evidence
obtained to lead Peerless to believe that the fire was started by or on behalf of plaintiff;
(3) Peerless policies for claims where arson is suspected. Dkt. #19-11. Peerless
produced Mr. Tolhurst, who testified that plaintiff’s claim was denied because of
Peerless’ opinion that plaintiff set the fire. Dkt. #30-1, p.4. When asked whether he
had any evidence that plaintiff set the fire, however, Mr. Tolhurst respond, “I don’t know”
and “I don’t remember.” Dkt. #19-12, p.6. Mr. Tolhurst subsequently stated that he did
not have evidence that plaintiff set the fire. Dkt. #19-12, p.8. Mr. Tolhurst was also
unaware of any dishonest act committed by plaintiff. Dkt. #19-12, pp.10-11. When
asked about the vacancy provision of the insurance policy, Mr. Tolhurst explained that
the insurance policy requires 70 percent usage but that only one of the four floors was
being used by the business. Dkt. #19-12, p.14.
In a declaration dated December 2, 2015, Mr. Tolhurst explains that this
was his first deposition and he was surprised at how nervous he was. Dkt. #23-4, ¶ 17.
Mr. Tolhurst declares that because of his nervousness and plaintiff’s counsel’s
demeanor, he “had some unexpected difficulty recalling all of the specific facts of the
claim.” Dkt. #23-4, ¶ 18. Mr. Tolhurst specifically declares that although he “personally
did not have any evidence that plaintiff had personally set the first fire of September 23,
2011,” he “should have had the presence of mind to clarify that there is however
significant evidence that Mr. Waddington in particular had gathered during his
investigation of the claim showing Mr. Matos’ story about what happened on September
23, 2011 was not believable and that Mr. Matos had motive, means and opportunity to
set the fires of September 23, 2011 and/or arrange for them to be set and to create the
story about the reported thefts and/or go along with others pretending to rob him.” Dkt.
#23-4, ¶ 19.
Christian Waddington declares that he “did not find plaintiff’s story about
what he says happened at the subject premises before, during, and after the reported
fire/theft/losses of September 23, 2011 credible for many reasons.” Dkt. #23-3, ¶ 8.
Specifically, Mr. Waddington declares that “plaintiff was having cash flow problems and
was in financial distress at the time of the reported fire/theft losses” and “had been
trying to sell the subject premises commercial property during the year prior to the
reported fire/theft losses.” Dkt. #23-3, ¶¶ 10 & 14. Mr. Waddington believed that
plaintiff’s “incredible story is not believable” and lacked corroboration. Dkt. #23-3, ¶¶ 17
& 19. For example, Mr. Waddington declares that
although the perpetrators had plaintiff down on the couch at
gunpoint and stole two laptops (according to plaintiff) as well
as his Play Station 3, they did not steal the silver bracelet he
was wearing, nor did they steal the money plaintiff had on
him, nor his cell phone, nor his watch that he valued at
(during his EUO) $250 . . . . Third, the alleged perpetrators
mysteriously knew that the subject insured premises had an
alarm system and would need to be disabled, and somehow
knew or determined very quickly that plaintiff had a
surveillance system at the subject insured premises that
included three or four cameras constantly shooting video
inside the subject premises on the first floor where the
alleged attack and the reported theft and fire occurred.
Fourth, subsequent investigation of the claim included
obtaining plaintiff’s cell phone records and plaintiff was
unable to identify who he called on his cell phone one
minute after dialing 9-1-1 to report the 1:30 am
fire/attack/theft, although plaintiff could identify all other
numbers he called that night. Fifth, the perpetrators did not
take plaintiff’s cell phone from him before leaving, which one
would think they would do to ensure plaintiff didn’t call the
police on them as they were making their escape. Sixth,
plaintiff had collected on a prior fire loss claim of
approximately $30,000 (according to his EUO testimony) on
the fire insurance for his 804 Niagara Street, Buffalo
residence approximately seventeen months before reporting
the September 23, 2011 fire at the subject premises.
Seventh, we know from further investigation including further
review of plaintiff’s cell phone records that everything plaintiff
claims occurred beginning at approximately 1:30 a.m. on
September 23, 2011 had to have occurred within a sevenminute window, between the time of the last call plaintiff
made while inside the subject premises before the alleged
perpetrators arrived, and the time of plaintiff’s call to 9-1-1
from outside the premises after the alleged perpetrators left.
It is simply implausible that all plaintiff has said occurred
respecting the alleged perpetrators and their actions could
have occurred in less than seven minutes, considering
plaintiff says one of the two alleged perpetrators stayed on
the couch with him almost the entire time, leaving it to the
other alleged perpetrator alone to do all the destroying of the
surveillance system equipment including the destroying of
the surveillance computer’s hard drive, the pouring of
gasoline in various places around the first floor of the
building, the lighting of the fires, and the stealing of the
laptops. Plaintiff’s recorded statement also indicates
approximately 62 seconds passed from the time he reentered the subject premises at gunpoint under orders from
the perpetrators until the time he punched in the code at
gunpoint to turn off the alarm system with eight second [sic]
left before the alarm went off. Those first 62 seconds
occurred before any destruction of the surveillance system
started, and, some unknown amount of the seven minutes of
time between his cell phone calls had passed before he was
ever attacked by the alleged perpetrators outside the back
door of the insured premises. Eighth, plaintiff had motive,
means and opportunity to torch the subject premises and to
collect on the insurance.
Dkt. #23-3, ¶ 19. Mr. Waddington also notes that although plaintiff admitted that he had
gasoline on his clothing, no gasoline was discovered on the floor of the front room
where plaintiff claims to have slipped on the gasoline. Dkt. #23-3, ¶ ¶ 45 & 47. In
addition, Mr. Waddington notes that plaintiff informed him that the printing business was
not profitable and that plaintiff’s testimony of receiving monthly annuity payments of
$2,800 from an automobile accident were not reflected in his bank statements, which
showed near zero balances. Dkt. #23-3, ¶¶ 11 & 38. In fact, it was subsequently
determined that plaintiff sold his structured settlement payments on May 22, 2008. Dkt.
#23, ¶ 25.
Plaintiff denies that he was in financial distress, averring that at the time of
the fire, he was current on all obligations and had cash on hand that he kept in a safe
rather than a bank because his identity had been stolen and his bank account had been
frozen. Dkt. #30-5, ¶¶ 5 & 6.
DISCUSSION AND ANALYSIS
Motion to Compel Deposition of Donald Powers
Plaintiff disclosed Donald R. Powers, Chief Estimator and Inventory
Specialist of Losses for NFA, as an expert witness. Dkt. #18-2, p.3.
By letter dated October 16, 2015, defense counsel noted that Mr. Powers
failed to appear for his deposition and requested dates from plaintiff’s counsel to
reschedule Mr. Powers’ deposition. Dkt. #18-2, p.60. On October 30, 2015, defense
counsel again requested that plaintiff’s counsel reschedule Mr. Powers’ deposition.
Dkt. #18-2, p.63.
Plaintiff’s counsel responded that he did not know when Mr. Powers would
be back in Buffalo and inquired whether defense counsel would pay his airfare to attend
the deposition. Dkt. #18-2, p.64. Mr. Powers currently resides in Tennessee. Dkt. #22,
¶ 15. Defense counsel advised that they would pass the inquiry along to their client and
requested dates that Mr. Powers would be available. Dkt. #18-2, p.65.
Defendant moves to compel Mr. Powers’ deposition. Dkt. #18.
Plaintiff responds that defendant has yet to confirm that it would pay Mr.
Powers’ expenses. Dkt. #22, ¶ 11.
Defendant replies that it previously advised that it would pay a reasonable
hourly rate for the expert’s time spent at the deposition and for not more than two hours
of preparation. Dkt. #24, ¶ 10 & Dkt. #24-1, p.6.
Fed. R. Civ. P. 26(b)(4)(A) provides that “[a] party may depose any person
who has been identified as an expert whose opinions may be presented at trial.” Fed. R.
Civ. P. 26(b)(4)(E) provides that
Unless manifest injustice would result, the court must require
that the party seeking discovery: (I) pay the expert a
reasonable fee for time spent in responding to discovery
under Rule 26(b)(4)(A) . . .
The underlying purpose of Rule 26(b)(4)(E) “is to compensate experts for their time spent
participating in litigation and to prevent one party from unfairly obtaining the benefit of the
opposing party's expert's work free from cost." New York v. Solvent Chemical Co., Inc.,
210 F.R.D. 462, 468 (W.D.N.Y. 2002), quoting Goldwater v. Postmaster General, 136
F.R.D. 337, 339 (D.Conn.1991). “In implementing this rule, courts aim to calibrate the fee
so that [parties] will not be hampered in efforts to hire quality experts, while [their
adversaries] will not be burdened by unfairly high fees preventing feasible discovery and
resulting in windfalls to the expert.” Mannarino v. United States, 218 F.R.D. 372, 374
(E.D.N.Y. 2003) (internal quotation omitted). Thus, “the expert certainly should be
reimbursed for any time during which he was unavailable to do other work.” McHale v.
Westcott, 893 F. Supp. 143, 151 (N.D.N.Y. 1995). This includes time spent preparing for
a deposition, “time spent traveling to and from the deposition, and the expenses incurred
during travel, so long as they are reasonable.” Solvent Chem. Co., 210 F.R.D. at 471-72.
The party seeking to be reimbursed bears the burden of demonstrating
that the fee sought is reasonable. Id. at 468. In addition, “[t]he rule and the case law
makes it clear that the parties seeking court intervention to determine a reasonable fee
for an expert deposition should do so retrospectively – that is, after the deposition has
taken place.” Conte v. Newsday, Inc., No. CV 06-4859, 2011 WL 3511071, at *3
(E.D.N.Y. Aug. 10, 2011).
Subject to these parameters, defendant’s motion to compel the deposition
of Donald Powers is granted.
Motion to Compel Production of Documents
Plaintiff’s Request for Production of Documents and Things seeks, as
relevant to the instant motion, “Defendant’s entire claim file on Plaintiff’s submitted
claim in this instant action.” Dkt. #30-2, p.5. Subject to objections for “documents
protected from disclosure by the attorney-client privilege, the work-product privilege,
and/or the trial preparation privilege in that plaintiff seeks documents that post-date
defendant’s decision to deny plaintiff’s claim,” defendant produced “non-privileged claim
file documents and records pre-dating the point in time when Peerless made a firm
decision to deny coverage on the claim.” Dkt. #30-2, p.5. Defendant also provided a
privilege log and “certain redacted documents.” Dkt. #30-2, p.5.
By letter dated October 25, 2015, plaintiff’s counsel advised defense
In response to Defendant’s responses to Plaintiff’s request
for production of documents and things, I previously voiced
my objection over the documents withheld or redacted especially those prior to the denial of coverage and reports.
As you are aware, the reports are made in the ordinary
course of business and communications regarding the
investigation before the denial of the claim are made in the
ordinary course of business (Nicastro v. New York Cent.
Mut. Fire Ins. Co., 117 A.D.3d 1545 (4th Dept. 2014). Your
privilege log contains numerous communications that
occurred prior to the denial letter. Additionally, there are
redactions on the reports of Professional Claims
Management regarding the adjustment of Plaintiff’s claim.
As such, I am requesting that you fully comply with Plaintiff’s
discovery demands as to the withheld communications and
redactions on the report.
Defense counsel declares that he has no recollection of any conversation
regarding Peerless’ discovery responses prior to receipt of this letter. Dkt. #23, ¶ 16.
Moreover, notwithstanding that the letter is dated October 25, 2015, defense counsel
declares that it was received in the mail by counsel on November 10, 2015. Dkt. #23,
¶ 19. The postmark on the envelope is dated November 9, 2015. Dkt. #23, ¶ 21 &
Plaintiff filed this motion on November 10, 2015. Dkt. #19. Plaintiff seeks
production of all documents created prior to the denial of plaintiff’s claim, unless the
documents primarily contain legal advice. Dkt. #19-2, p.16.
Defendant argues that the motion is premature, as plaintiff failed to make
a good faith effort to resolve the dispute prior to filing this motion. Dkt. #23-2, pp.19-20.
In any event, defendant argues that plaintiff failed to identify or specify what documents
he is seeking or to challenge defendant’s privilege log. Dkt. #23-2, pp.22-24.
Plaintiff reiterates that defendant “has withheld and/or redacted
documents and reports that were discoverable and not privileged.” Dkt. #30-6, p.10.
More specifically, plaintiff argues that he “is primarily concerned with documents
ascertaining the actual cash value of Plaintiff’s loss and those nonlegal documents
discussing evidence of arson,” noting that, he “still has not received any such
documents from Defendant.” Dkt. #30-6, p.11.
Setting aside defendant’s legitimate concern about plaintiff’s lack of a
good faith effort to resolve this dispute before filing a motion to compel, a review of the
privilege log provided by defendant reveals only two documents which precede the
denial letter dated January 21, 2013 and are not described in terms of drafting said
denial letter. Dkt. #23, pp.52-59. The first such document, dated December 17, 2013,
is described as an email between a Specialty Claims Consultant and defendant’s
attorney “regarding hard drive recovered from surveillance equipment at subject
premises.” Dkt. #23, p.52. The second document, dated December 23, 2014, is
described as an email between the same parties regarding the litigation budget. Dkt.
In federal diversity actions, issues of attorney-client privilege are governed
by New York law. Grinnell Corp. v. ITT Corp., 222 F.R.D. 74, 76 (S.D.N.Y. 2003). “In
New York, the elements of the attorney-client privilege are ‘the existence of an attorneyclient relationship, a communication made within the context of that relationship for the
purpose of obtaining legal advice, and the intended and actual confidentiality of that
communication.’” Safeco Ins. Co. v. M.E.S., Inc., 289 F.R.D. 41, 45-46 (E.D.N.Y. 2011)
(internal quotation omitted). Under New York law, the party invoking the attorney-client
privilege bears the burden of establishing all essential elements of the privilege. Magee
v. Paul Revere Life Ins. Co., 172 F.R.D. 627, 638 (E.D.N.Y. 1997). An adequately
detailed privilege log may satisfy this burden if, “as to each document, it sets forth
specific facts that, if credited, would suffice to establish each element of the privilege.”
Safeco, 289 F.R.D. at 47 (internal quotation omitted).
“While state law governs the question of attorney-client privilege in a
diversity action, federal law governs the applicability of the work product doctrine.”
Tudor Ins. Co. v. Stay Secure Construction Corp., 290 F.R.D. 37, 39 (S.D.N.Y. 2013).
Pursuant to Rule 26(b)(3) of the Federal Rules of Civil Procedure, material is protected
from disclosure under the attorney work product doctrine where the material at issue is
a document or tangible thing that was prepared in anticipation of litigation and prepared
by or for a party to the action or by or for his representative. Magee, 172 F.R.D. at 639.
Materials assembled in the ordinary course of business are not shielded by the work
product privilege. Id. at 640. The burden of establishing the elements of the work
product privilege rests with the party invoking the privilege. Id.
In the instant case, the Court is not persuaded by the description set forth
in the privilege log that the purpose of the communication regarding the hard drive
recovered from surveillance equipment at subject premises was to obtain legal advice.
See Safeco, 289 F.R.D. at 48 (descriptive entry does not establish that the email was
prepared to elicit legal advice). Similarly, the description does not establish that the
email was sent in anticipation of litigation rather than in the ordinary course of the
ongoing investigation of plaintiff’s insurance claim. See Tudor Ins. Co., 290 F.R.D. at 40
(as a general rule, insurance company’s investigation to determine whether claim
should be paid is not undertaken in anticipation of litigation). Accordingly, defendant
shall either disclose this document or submit it to the Court for in camera review within
ten days of the filing of this Decision and Order.
As to the correspondence “regarding litigation budget,” the Court is
satisfied that this document falls within the confines of attorney work product prepared
in anticipation of litigation. See Gucci America, Inc. v. Guess?, Inc., 271 F.R.D. 58, 80
Finally, the Court denies plaintiff’s request for an unredacted copy of the
loss report (Dkt. #30-2), as the information redacted, to wit, defendant’s reserve, is not
relevant to the issues remaining in this litigation. Cf. National Union Fire Ins. Co. of
Pittsburgh v. H&R Block, Inc., No. 12 Civ. 1505, 2014 WL 4377845, at * (S.D.N.Y. Sept.
4, 2014) (reserve information generally discoverable when there is a question as to
whether insurer acted in bad faith).
Summary judgment is appropriate "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(c). “In reaching this determination, the
court must assess whether there are any material factual issues to be tried while
resolving ambiguities and drawing reasonable inferences against the moving party, and
must give extra latitude to a pro se plaintiff.” Thomas v. Irvin, 981 F. Supp. 794, 798
(W.D.N.Y. 1997) (internal citations omitted).
A fact is "material" only if it has some effect on the outcome of the suit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Catanzaro v. Weiden,
140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party."
Anderson, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied,
502 U.S. 849 (1991).
Once the moving party has met its burden of ?demonstrating the absence
of a genuine issue of material fact, the nonmoving party must come forward with
enough evidence to support a jury verdict in its favor, and the motion will not be
defeated merely upon a
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