New York Central Mutual Fire Insurance Company et al v. Nissan North America, Inc.
Filing
59
DECISION AND ORDER. Defendant's motion is GRANTED. Plaintiffs shall provide supplemental document production and interrogatory answers consistent with the courts determination herein within 30 days. As required by Fed.R.Civ.P. 37(a)(5)(A), Plaintiffs shall show cause not later than 20 days from the date of this Decision and Order why Defendant's expenses, including attorneys fees, in connection with Defendant's motion should not be awarded. Defendant's response shall be filed within 10 days; Plaintiffs' reply shall be filed within five days thereafter. Oral argument shall be at the court's discretion. Signed by Hon. Leslie G. Foschio on 9/28/2023. (SDW)
Case 1:22-cv-00272-WMS-LGF Document 59 Filed 09/28/23 Page 1 of 19
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
NEW YORK CENTRAL MUTUAL FIRE
INSURANCE COMPANY as subrogee of
Wayne and Carol Blumrick,
WAYNE BLUMRICK,
CAROL BLUMRICK,
v.
DECISION
and
ORDER
Plaintiffs,
22-CV-272WMS(F)
NISSAN NORTH AMERICA, INC.,
Defendant.
_____________________________________
APPEARANCES:
RUPP PFALZGRAF LLC
Attorneys for Plaintiffs
MARCO CERCONE,
CHRISTOPHER J. SASIADEK,
BRANDON M. SNYDER,
MATTHEW F. WITHIAM-LEITCH, of Counsel
1600 Liberty Building
424 Main Street
Buffalo, New York 14202
SHOOK, HARDY & BACON, L.L.P.
Attorneys for Defendant
HOMER B. RAMSEY,
JOSHUA A. WEINER, of Counsel
1 Rockefeller Plaza, 28th Floor
New York, New York 10020
JURISDICTION
This case was referred to the undersigned by order of Hon. William M. Skretny
for all non-dispositive pretrial matters on May 5, 2022 (Dkt. 7). It is presently before the
court on Defendant’s Motion To Compel, filed June 12, 2023 (Dkt. 42).
Case 1:22-cv-00272-WMS-LGF Document 59 Filed 09/28/23 Page 2 of 19
BACKGROUND
In this action, commenced April 8, 2022, Plaintiffs allege Defendant (“Defendant”
or “Nissan”) is liable for damages to Plaintiffs Blumricks’ (“Blumricks”) property as a
result of a fire in the Blumricks’ garage which occurred on June 17, 2021, caused by a
defectively designed or manufactured seal within the actuator pump of the Automatic
Brake System (“ABS”) on Blumricks’ 2020 Nissan Murano SUV which the Blumricks
leased from a local Nissan dealer on September 18, 2020. Plaintiffs assert three state
law claims including negligence, strict product liability and breach of express and
implied warranties.
Defendant’s Motion to Compel was filed June 12, 2023 (Dkt. 42) (“Defendant’s
motion”) including Declaration of Joshua A. Weiner In Support Of Defendant Nissan
North America, Inc.’s Motion To Compel Plaintiffs To Provide Proper And Complete
Discover (Dkt. 43) (“Weiner Declaration”) together with exhibits A – I (Dkts. 43-1 – 43-9)
(“Weiner Declaration Exh(s). __”) and Defendant’s Memorandum Of Law In Support Of
Motion To Compel Plaintiffs To Provide Proper And Complete Discovery (Dkt. 44)
(“Defendant’s Memorandum”) together with exhibits A – C (Dkts. 44-1, 44-2 and 44-3).
(“Defendant’s Memorandum Exh(s). __”). Plaintiffs’ opposition, Declaration of Matthew
F. Withiam-Leitch, (Dkt. 50) (“Withiam-Leitch Declaration”) was filed July 5, 2023
together with exhibits A – D (Dkts. 50-1 – 50-4) (“Withiam-Leitch Declaration Exh(s)
___”) and Plaintiffs’ Memorandum of Law (Dkt. 50-2) (‘Plaintiffs Memorandum”). On
July 17, 2023, Defendant filed Defendant’s Reply Memorandum Of Law In Further
Support of Defendant’s Motion (Dkt. 51) (Defendant’s Reply”). Oral argument was
deemed unnecessary.
2
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FACTS 1
On June 17, 2021, Plaintiff Carol Blumrick heard a noise in the Blumricks’
unattached garage at 31 State Street, Middleport, New York, and upon entry to the
garage noticed black smoke coming from a back wall of the garage in which the 2020
Murano (the Murano”) was located or from under Murano itself. Plaintiff Wayne
Blumrick was working in an apartment building adjacent to the Blumrick residence. As a
result of the fire (“the fire”) the Blumricks’ Murano which was insured by Plaintiff New
York Central Mutual Fire Insurance Company (“New York Central”), was a complete
loss, and the garage was destroyed along with other damage to the Blumricks’ property
which were also insured by New York Central. Plaintiffs seek approximately $183,000
in damages including reimbursement to Plaintiff New York Central for payments of
$92,085.22 made to the Blumricks under their insurance policy with New York Central
and approximately $81,000 in uninsured losses incurred by the Blumricks. Plaintiffs
claim the fire was caused by a defective seal on the 2020 Murano’s ABS actuator pump
assembly. Plaintiffs rely on the fact that the National Highway Transportation Safety
Administration (“NHTSA”) required Defendant Nissan to recall 2015-2018 Muranos
along with other models manufactured by Nissan based on a defective ABS actuator
pump seal similar to the seal on Blumricks’ 2020 Murano’s ABS which the Plaintiffs’
allege allowed brake fluid to leak into the ABS circuit board resulting in a fire.
1
Taken from the papers and pleadings filed in connection with this action.
3
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DISCUSSION
Defendant’s motion raises seven issues. First, Defendant requests that Plaintiffs’
General Objections to Defendant’s Interrogatories and Document Requests be stricken
for violation of Fed.R.Civ.P. 34(b)(2)(B) – (C) (“Rule 34(b)(2)(B), (C)”). As amended in
2015, Rule 34(b)(2)(B) requires the responding party to “state with specificity the
grounds for objecting to the [document] request including the reasons” and Rule
34(b)(2)(C) requires that an objection state whether responsive materials are being
withheld on the basis of “[the stated] objection.” Thus, courts reject general objections
unless such objections pertain to each document request such as when a general
objection is based on privilege or work product protection and applies to each document
production request. See Sovereign Cape Cod Investors LLC v. Eugene A. Bartow
Insurance Agency, Inc., 2022 WL 624553, at *3 (E.D.N.Y. Mar. 3, 2022) (“general
objections may be appropriate only if the objection applies to every response to every
document request”) (citing Fischer v. Forrest, 2017 WL 773694, at *3 (S.D.N.Y. Feb. 28,
2012) (holding that “incorporating all of the General Objections into each response [to a
Rule 34(a) request] violates Rule 34(b)(2)(B)'s specificity requirement as well as Rule
34(b)(2)(C)'s requirement to indicate whether any responsive materials are withheld on
the basis of an objection,” and that “[g]eneral objections should rarely be used after
December 1, 2015 unless each such objection applies to each document request (e.g.,
objecting to produce privileged material)” (underlining added)). See also Vann v. City of
Rochester, 2023 WL 4976002, at * 3 (W.D.N.Y. Aug. 3, 2023) (directing defendant to
supplement responses for production by withdrawing general objection and reasserting
objections as to specific documents).
4
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In response, Plaintiffs assert that as their general objection was “primarily” based
on privilege, specifically, work product protection, Plaintiffs’ general objections fall within
the exception to Rule 24(b)(1)(B). Plaintiffs’ Memorandum, Dkt. 50-2 at 2-3. However,
careful review of Defendant’s Requests indicates few, if any, of Defendant’s production
requests are likely to involve any such assertions of privilege or work product protection.
For example, Defendant’s Request No. 1 requests Plaintiffs produce all documents
referenced or relied upon by Plaintiffs in answering Defendant’s First Set of
Interrogatories. See Weiner Declaration Exh. B, Dkt. 43-2 at 30. Defendant’s Request
No. 2 requests documents providing names and addresses for all witnesses to the fire,
id.; Defendant’s Request No. 3 requests documents showing the names and addresses
of all owners of the 2020 Murano at the time of the fire, id., Defendant’s Request No. 4
requests information concerning ownership of the property at issue, id., Defendant’s
Requests Nos. 5, 6 and 7 request information for any insurance policy on which a claim
has been made for damages to the Murano and the premises by the Blumricks together
with requests for Defendant to obtain copies of such information, id. at 3-4; Defendant’s
Request No. 9 seeks documents concerning any statements made by Defendant
regarding the subject of Plaintiffs’ action, id., at 5; Defendant’s Request No. 10 requests
witness and accident reports in possession of Plaintiffs or prepared in the regular
course of business relating to the fire and purported losses, id. at 5; Defendant’s
Request No. 11 seeks copies of all fire, police, adjustors and other reports relating to
the fire and alleged damages, id.; Defendant’s Request No. 12 requests copies of any
papers served in the instant case, id. at 5-6; Defendant’s Request No. 12 seeks
documents related to the ownership, maintenance and repair of the Murano, id. at 6;
5
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Requests Nos. 13-14 request photographs and videos of the fire, id.; Requests Nos. 1618 seek documents pertaining to Plaintiffs’ damages, id.; Request No. 19 requests
copies of all government standards Plaintiffs contend the Murano failed to meet, id.;
Request No. 20 seeks documents relating to Plaintiffs’ claim that Nissan recalled
750,000 vehicles because of problems with their ABS system, id.; Defendant’s Request
No. 21 requests documents supporting Plaintiffs’ allegation that the Murano passed
inspection on September 18, 2020, id.; Request No. 22 seeks documents establishing
that the Blumricks’ Murano was within the NHTSA recall as Plaintiffs allege, id.;
Requests Nos. 23-28 seek documents supporting Plaintiffs’ assertion that the Murano’s
ABS actuator pump failed allowing brake fluid to leak into the ABS circuit board resulting
in an electrical short circuit which in turn caused the fire as a result of a design or
manufacturing defect, including a lack of warnings and thereby established a breach of
warranty, id., at 8-10; Defendant’s Requests Nos. 29-30 seek information concerning
Plaintiffs’ damages. Id. at 10. As can be seen from the foregoing recitation, none of
Defendant’s requests, on their face, are likely to implicate any plausible assertion of
privilege or work product protection. Therefore, Defendant’s requests do not establish a
basis for Plaintiffs’ assertion of privilege or work product protection against each of
Defendant’s document requests. See Sovereign Cape Cod Investors, LLC, 2022 WL
624553, at *3 (citing Fischer, 2017 WL 773694, at *3). Accordingly, Plaintiffs’
generalized objections lack any basis upon which to find any reason to apply the
exception to Rule 34(b)(2)(B) based on an asserted privilege, are therefore ineffective
and as such are overruled. 2
Defendant’s request, Defendant’s Memorandum, Dkt. 44, at 7, for an order striking Plaintiffs’ General
Objections is, accordingly, unnecessary.
2
6
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Second, Defendant challenges Plaintiffs’ Privilege Log (Weiner Declaration Exh.
G, Dkt. 43-7) based on a failure to comply with Fed.R.Civ.P. 26(b)(5)(A)(ii) (“Rule
26(b)(5)(A)(ii)”) and Local Rule of Civil Procedure 26(d)(1) (“L.Rule Civ.P. 26(d)(1)”).
Rule 26(b)(5)(A)(ii) and L.Rule Civ.P. 26(d)(1) which require assertions of privilege or
work product protection be stated in a description of the nature of the withheld
documents in a manner that, without revealing the privileged or work product protected
information, will enable the receiving party to assess the claim. Plaintiffs’ Privilege Log
asserts work product protection for all information post-dating New York Central’s
purported decision on June 25, 2021 (see Plaintiffs’ Memorandum, Dkt. 50-2, at 47) to
pursue a subrogation claim against Defendant, see Withiam-Leitch Declaration Exh. G,
Dkt. 50-1 at 48, and a lack of relevancy objection to six documents Plaintiffs provided in
redacted form including a Property Large Loss Report and five Claim Notes. Id. To be
effective, relevancy objections must be asserted at the time of a response to a Rule
34(a) document request is served, otherwise it is waived. See Lamparelli Construction
Company, Inc. v. Arrow Wood Products, Inc., 2016 WL 1387239, at * 1 (W.D.N.Y. Apr.
8, 2016) (“The general rule is that ‘a failure to respond or object to a discovery request
in a timely manner waives any objection which may have been available.”) (citing
cases). Here, a fair reading of Plaintiffs’ responses to Defendant’s Rule 34(a)
document production requests reveals no objection based on lack of relevancy was
timely interposed by Plaintiffs in response to Defendant’s document requests. See
Weiner Declaration Exh. D, Dkt. 43-4 (passim). Specifically, Plaintiffs’ objections were
limited to vagueness, overbreadth, and undue burdensomeness. See, e.g., id. at 6.
Therefore, to the extent Plaintiffs’ asserted ground for redaction as to the Large Loss
7
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Report and five Claim Notes is based on a lack of relevancy, as the Plaintiffs’ Privilege
Log asserts, such objection was waived and Plaintiffs are therefore required to provide
to Defendant copies of each document in unredacted form.
As regards Plaintiffs withholding of post-subrogation created documents, referred
to as “Miscellaneous” documents, based on work-product protection, Plaintiffs’ Privilege
Log is deficient in two major respects. First, the Privilege Log fails to provide any
description of the withheld “Miscellaneous” documents contrary to the requirements of
Rule 26(b)(1), (5)(A)(ii) and Local R.Civ.P. 26(d)(1). Second, to the extent Plaintiffs
assert that all such documents are subject to work-product protection as created in
contemplation of litigation, see Fed.R.Civ.P. 26(b)(3)(A), based solely on Plaintiffs’
assertion that all documents created by an insurer after Plaintiff New York Central’s
decision to pursue subrogation on June 25, 2021, are thereby within the scope of workproduct protection, see Plaintiffs’ Memorandum, Dkt. 50-2, at 3-4, Plaintiffs are
mistaken. Courts have held that all documents created by an insurer post-subrogation
are not thereby subject to work-product protection as created in contemplation of
litigation absent a showing by the party asserting the protection that the document was
in fact created in contemplation of litigation. See Selective Ins. Co. of America v.
Swarey, 2011 WL 240750, at *2 (W.D.N.Y. Jan. 24, 2011) (court found upon review of
unredacted version of redacted documents submitted by parties that documents
contained “strategic and tactical comments regarding possible litigation, confirm[ing]
that they were made at a point where litigation was not only anticipated, but being
actively planned”); Weber v. Paduano, 2003 WL 161340, at *4 (S.D.N.Y. Jan. 22, 2003)
(“A party withholding insurance documents may not rest on conclusory allegations of
8
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privilege, but must establish, by objective evidence, that the author of the document
anticipated litigation at the time that the document was created, and would not have
created the document in essentially the same way had the prospect of litigation not
existed.”) (“Weber”) (citing United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998)
(holding that whether document was prepared in anticipation of litigation means it was
prepared “because of the prospect of litigation”)) (underlining added). Moreover, even
documents created after instituting litigation does not relieve the withholding party of the
obligation to show that the document “would not have been prepared but for the
litigation.” Id. at *7 (citing In re Kidder Peabody Sec. Litig., 168 F.R.D. 459, 467 n. 6
(S.D.N.Y. 1996). In Weber, the court observed that all of the documents at issue were
authored within three months of the fire in that case, “suggesting that they were not
prepared in anticipation of litigation." Weber, 2003 WL 161340, at *9. Here, according
to Plaintiffs, the withheld documents were all created after Plaintiff New York Central
allegedly made the decision to subrogate on January 25, 2021, a mere four days after
the fire on June 21, 2021 thus casting doubt on whether New York Central’s decision to
pursue subrogation was in fact made on January 25, 2021. Further, a party’s failure to
satisfy such burden warrants granting a requesting party’s motion to compel. See
Fingerhut ex rel. Fingerhut v. Chautauqua Institute Corp., Inc., 2013 WL 5923269, at *4
(W.D.N.Y. Oct. 31, 2013) (granting plaintiff’s motion to compel seeking production of
materials identified in defendant’s privilege log where defendant fails to provide
sufficient information to enable court to determine whether withheld materials –
photographs – were in fact created in preparation for litigation); Weber, 2003 WL
161340, at *9, 15 (directing defendant to produce disputed documents within 30 days
9
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based on defendant’s failures to provide evidence of insurer’s intent to litigate as to
each withheld documents).
Plaintiffs’ assertion (see Privilege Log, Dkt. 43-7) that the “Miscellaneous”
documents are within the scope of the attorney-client privilege fails for similar reasons.
First, the Privilege Log is woefully deficient in that it fails to provide even the barest
indicia of descriptiveness to enable an assessment whether the privilege under New
York law as applicable in a diversity action such as the instant case, see McNamee v.
Clemens, 2014 WL 1338720, at * 4 (E.D.N.Y. Apr. 2, 2014) (deficient privilege log failed
to permit reviewing court to determine whether the asserted privileges applied), should
be applied as required by Rule 26(b)(5)(A)(ii) and Local Rule 26(d)(1). Second,
Plaintiffs have not provided any objective evidence in the form of affidavits or otherwise
to support Plaintiffs’ assertion of the privilege. See Discussion, supra, at 8-18. See
also Adelman, 134 F.3d at 1202 (“in anticipation of litigation” extends work-product
protection to documents which “‘in light of the nature of the document and the factual
situation in the particular case, the document can fairly be said to have been prepared
or obtained because of the prospect of litigation.’”) (quoting Charles Alan Wright, Arthur
R. Miller, and Richard L. Marcus, 8 FEDERAL PRACTICE & PROCEDURE, § 2024 at 343
(1994) (italics in original)). Here, Plaintiffs assert Plaintiff New York Central decided to
pursue subrogation on June 25, 2021. See Plaintiffs’ Memorandum, Dkt. 50-1 at 4.
However, an assertion by counsel in a memorandum of law is insufficient to establish
the date of insurer’s decision to pursue subrogation, rather, evidence such as an
affidavit by a person with knowledge of the facts to establish a particular document is
entitled to work-product production is required. See Fingerhut ex rel., 2013 WL
10
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5923269, at *3 (neither privilege log nor subsequent submissions by defendant enabled
court to determine whether withheld materials were subject to work-product protection);
Weber, 2003 WL 161340, at *9 (no affidavit or other evidence provided date defendant’s
insurer created withheld documents “in furtherance of an identifiable resolve to litigate”).
In sum, Plaintiffs’ failure to satisfy their burden to establish work-product protection or
privilege for the “Miscellaneous” documents created after the asserted decision by
Plaintiff New York Central to seek subrogation requires Defendant’s motion related to
this issue be GRANTED.
Third, Defendant complains that Plaintiffs’ redaction of documents Plaintiffs
produced, see Weiner Declaration ¶ 12, Dkt. 43, at 3, was in white rather than the usual
black making it difficult for Defendant to discern exactly what is being redacted.
Defendant’s Memorandum, Dkt. 44, at 17. Plaintiffs contend Defendant cannot cite to
any authority for Defendant’s request. Plaintiffs’ Memorandum, Dkt. 50-2, at 4-5. While
the extent of Defendant’s problem may be difficult for the court to assess, in the
absence of any examples provided by Defendant to the court, the court notes that
redactions in this district are typically done in black. Accordingly, Plaintiffs shall provide
to Defendant copies of all produced redacted documents using black to effect such
redactions.
Fourth, Defendant seeks more complete document production responsive to
Defendant’s First Set of Requests to Produce No. 13 served July 19, 2022. See Weiner
Declaration Exh. B, Dkt. 43-2, at 6, (“Document Request No. 13). Specifically,
Document Request No. 13 requests Plaintiffs produce all documents relating to the
purchase/acquisition, ownership, maintenance, repair, servicing, alternation,
11
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manufacturing, storage and use of the 2020 Murano. In Plaintiffs’ response, Plaintiffs
stated all responsive documents are provided in the New York Central Claim File
attached as Exhibit A. 3 Defendant objects that such response is deficient in that it fails
to expressly state whether the Blumricks have any responsive documents in their
possession. See Dkt. 44 at 17-18. In opposition, Plaintiffs contend Plaintiffs have
produced all relevant and non-privileged documents in Plaintiffs’ possession. Plaintiffs’
Memorandum, Dkt. 50-2, at 5. Initially, the court notes the absence of any valid
objection by Plaintiffs based on lack of relevance to Request No. 13. See Weiner
Declaration, Dkt. 43-4, at 17 (referencing Plaintiffs’ General Objections and objections
based on attorney-client privilege and work product protection). Plaintiffs also speculate
that responsive documents may have been lost in the fire which severely damaged the
Blumricks’ garage and the 2020 Murano. Dkt. 50-2 at 5. Nevertheless, Defendant is
entitled to learn whether any responsive documents exist or what steps Plaintiffs have
taken to ascertain the actual facts concerning their existence. See New York v. Grand
River Enterprises Six Nations, Ltd., 2020 WL 7350335, at * 3 (W.D.N.Y. Dec. 15, 2020)
(“it is basic that in responding to a request to produce documents pursuant to
Fed.R.Civ.P. 34(a), a responding party is required to engage in good-faith reasonable
effort to identify and locate all responsive documents subject to objections based on
lack of relevance, overbreadth, undue burdensomeness and privilege.”) (citing Guillory
v. Skelly, 2014 WL 4542468, at *10 (W.D.N.Y. Sept. 11, 2014) (requiring requested
party provide affidavit detailing steps taken to obtain the requested information and
explaining why such attempt was unsuccessful). Accordingly, Plaintiffs shall state
Exhibit A is a copy of New York Central’s Fire Loss Questionnaire submitted to the Blumricks. It does
not include a completed copy of the form by the Blumricks. Weiner Declaration Exh. D, Dkt. 43-4, at 8.
3
12
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unambiguously whether any documents responsive to this Request No. 13 exist or
provide, in affidavit form, a statement explaining what steps were taken by Plaintiffs with
respect to ascertaining the existence of documents responsive to Request No. 13.
Fifth, Defendant seeks more complete responses to Defendant’s Requests Nos.
14 and 15 which request copies of color photographs, videotapes, movies and other
pictorial representations of the fire scene including damage to the Blumricks’ property
and the 2020 Murano and which depict the condition of such property and vehicle prior
to and after the fire. See Weiner Declaration Exh. B, Dkt. 43-2, at 6-7. Plaintiffs’
response includes a statement that all responsive documents were included in the New
York Central’s claim file and/or the Blumricks’ uninsured claim file. See Weiner
Declaration Exh. D, Dkt. 43-4, at 9. Defendant contends such responses are deficient
in that they fail to unambiguously state whether such photos and videos, etc. exist and
that Defendant should be given copies of the Fire Form For Loss Questionnaire and
N.Y. Standard Part II Fire Claim Form which the Blumricks are believed to have
completed but which Plaintiffs have refused to produce. See Defendant’s
Memorandum, Dkt. 44, at 18-19. The court agrees with Defendant that Plaintiffs’
response that “all non-privilege documents responsive” to Defendant’s request “have
been produced,” see Weiner Declaration Exh. H, Dkt. 43-8, at 4 (referencing Plaintiffs’
December 3, 2022 Letter to Defendant responding to Defendant’s October 10, 2022
Letter requesting Plaintiffs produce responsive documents), is inadequate and,
specifically, that it fails to include a copy of the Fire Form Loss Questionnaire and the
N.Y. Standard Part II Fire Claim Form fully executed by the Blumricks as referenced in
New York Central’s letter to the Blumricks which was produced to Defendant. See
13
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Defendant’s Memorandum, Dkt. 44, at 19. Cf., Converse v. State Farm Fire and
Casualty Company, __ F.Supp.3d __; 2023 WL 4489510, at *9 (N.D.N.Y. July 12, 2023)
(recognizing defendant insurer has right to insurance proof of loss form in connection
with investigating claim). As with Plaintiffs’ insufficient response to Request No. 13,
see, Discussion, supra, at 11-13, Plaintiffs’ response that “all non-privileged documents
responsive to the RFP (Nos. 14 and 15) (see Weiner Declaration Exh. H, Dkt. 43-8, at
4) have been produced” is evasive and non-responsive. See Land Ocean Logistics,
Inc. v. Aqua Gulf Corp., 181 F.R.D. 229, 237-38 (W.D.N.Y. 1998) (conclusory assertion
the requested documents were protected by a privilege are insufficient to satisfy the
requested party’s burden to “supply opposing counsel with sufficient information to
assess the applicability of the privilege without revealing information which is privileged
or protected.” (citing cases)). Accordingly, Plaintiffs shall either supplement Plaintiffs’
responses or provide affidavits describing in reasonable detail what investigations
Plaintiffs undertook to locate responsive documents. See also Grand River Enterprises
Six Nations, Ltd., 2020 WL 7350335, at * 3. Further, the Blumricks shall provide copies
of the completed insurance forms, specifically the Firm Form Loss Questionnaire and
the N.Y. Standard Part II Fire Claim Form, as discussed supra. See Converse, 2023
WL 4489510, at *9.
Sixth, Defendant’s motion requests Plaintiffs to more fully answer Defendants’
Interrogatory No. 10 which requests Plaintiffs describe all packages, materials, personal
property located in the Blumricks’ garage at the time of the fire. See Weiner Declaration
Exh. C, Dkt. 43-3, at 16. Plaintiffs answered Defendant’s Interrogatory No. 10 by stating
Defendant was directed to Plaintiffs’ Answer to Defendant’s Interrogatory No. 1 which
14
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requested Plaintiffs to specify all Plaintiffs’ damages which Plaintiffs allege were caused
by Plaintiffs’ claims. See Weiner Declaration Exh. C, Dkt. 43-3, at 6. Plaintiffs further
responded to Defendant’s Interrogatory No. 10 by directing Defendant to the information
included in Plaintiff New York Central’s claim file and Plaintiffs Blumricks’ uninsured loss
claim file, see Weiner Declaration Exh. C, Dkt. 43-3, at 17, which Plaintiffs produced, in
redacted form, in response to Defendant’s Production Request Nos. 14-15. Id., Exh. D
at 8. However, “such broad responses referencing a party's document production
request without sufficient particularization identifying, with reasonable exactness, which
documents provide the requested answer to the interrogatory, is insufficient under
Fed.R.Civ.P. 33(b)(3)” (“Each interrogatory must, to the extent it is not objected to, be
answered separately and fully.”), Mills v. Steuben Foods, Incorporated, 2023 WL
179579, at *2 (W.D.N.Y. Jan 13, 2023) (plaintiff directed to provide “‘full, specific,
detailed, and complete responses to each of defendant's disputed interrogatories’” and
rejecting plaintiff's “‘strategy’” of directing defendant to allegations in the complaint or to
defendants’ claims files) (italics in original) (quoting Gov’t Employees Ins. Co. v. Strut,
M.D., 2021 WL 230902, at *2 (W.D.N.Y. Jan 22, 2021) (citing Robbins & Myers, Inc. v.
J.M. Huber Corp., 2003 WL 21384304, at *5 n.24 (W.D.N.Y. May 9, 2003) (“[D]irecting
the opposing party to an undifferentiated mass of records is not a suitable response to a
legitimate request for discovery [interrogatories].”) (citing caselaw))); Chinn v. Elmwood
Franklin School, 2018 WL 6738326, at *4 (W.D.N.Y. Nov. 1, 2018) (“answering
interrogatories simply by directing the proponent to rummage through other discovery
materials falls short of the obligations imposed by Rule 33”). Here, Plaintiffs’ reference
to Plaintiffs’ Answers to Defendant’s Interrogatory No. 1 is deficient in that it contains no
15
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listing whatsoever of the items located in the Blumricks’ garage; rather, it describes only
categories of loss such as walls, framing, doors, windows, fencing, deck structures, and
damage to the Murano, along with values associated with such losses. See Weiner
Declaration Exh. C, Dkt. 43-3, at 7-8, 9. Moreover, neither the New York Central claim
file nor the Blumricks’ uninsured loss claim file were provided to the court for its review
by Plaintiffs, thus rendering an evaluation of whether such reference to these files as a
sufficient answer to Defendant’s Interrogatory No. 10, speculative. Based on the
foregoing, Defendant’s motion is GRANTED with regard to Plaintiffs’ failure to properly
answer Interrogatory No. 10. 4
Seventh, in Defendant’s Interrogatories Nos. 14 and 15, Defendant requests
Plaintiffs specify the component part of the Murano Plaintiffs claim was defectively
designed and, using technical, scientific, and engineering terminology or words of art
and the defective design of such component in detail, the manner in which Plaintiffs
claim each such component should have been designed, and provide any alternative
designs Plaintiffs claim should have been utilized by Defendant. Weiner Declaration
Exh. C, Dkt. 43-3, at 18. Defendant’s Interrogatory No. 15 requests Plaintiffs provide
the same information as sought by Defendant’s Interrogatory No. 14 with respect to any
Plaintiffs’ claims that the component part identified by Plaintiffs was defectively
manufactured. Weiner Declaration Exh. C, Dkt. 43-3, at 21. Plaintiffs’ answers stated
that the defective components included the Murano ABS actuator pump, circuit board,
Attached to Defendant’s Reply, is a copy of Plaintiff Wayne Blumrick’s list of personal property items
lost in the fire. See Dkt. 51-1. However, such listing fails to indicate it represents a complete listing of all
property located in the garage and particularly property which fire investigators reported were stored in
the garage such as flammable liquids (see Weiner Declaration Exh. A, Dkt. 44-7 (Niagara County Fire
Investigation Report)) nor their locations within the garage at the time of the fire. Defendant’s Reply, Dkt.
51, at 11.
4
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coupler, and surrounding bulkhead insulator and seals which allowed ABS brake fluid to
leak on the ABS circuit board causing a fire. Id. at 18. Plaintiffs’ answer to Defendant’s
Interrogatory No. 15 requesting details of Plaintiffs’ manufacturing defect refers to
Plaintiffs’ answer to Interrogatory No. 14. See Weiner Declaration Exh. C, Dkt. 43-3, at
21. Plaintiffs further stated that NHTSA recalls of Defendant’s 2015-2018 Murano’s
because of such defects in the design and manufacturing process of Defendant’s ABS
components, particularly the ABS actuator pump, supported Plaintiffs’ claims given, as
Plaintiffs assert, that the Blumricks’ 2020 Murano had “similar” ABS components. See
Weiner Declaration Exh. C, Dkt. 43-3, at 19; Dkt. 50-2 at 7. Defendant contends
Plaintiffs’ answers to Interrogatories Nos. 14 and 15 are insufficiently responsive.
Defendant’s Memorandum, Dkt. 44, at 22.
Specifically, Defendant argues that Plaintiffs’ answers side-step basic questions
of specifically how the Blumricks’ Murano’s ABS system was defectively designed or
manufactured, relying instead on the fact that the 2015-2018 NHTSA Murano recalls
involving ABS actuator assemblies were similar to the 2020 Murano’s ABS system. Id.
at 22-23; Defendant’s Reply, Dkt. 51, at 13. Plaintiffs’ assertion of similarity between
ABS actuators in the recalled Muranos and the Blumricks’ Murano reinforces the need
for Plaintiffs to answer Defendant’s Interrogatory Nos. 14 and 15 in specific technical
terms explaining the basis for Plaintiffs’ alleged design or manufacturing defect given
that Defendant maintains that the part number in the recalled Murano ABS actuators is
not the same as the part number for the Blumricks’ Murano’s ABS actuator, see
Defendant’s Memorandum, Dkt. 44, at 23 n. 7, a fact unchallenged by Plaintiffs. See
Plaintiffs’ Memorandum, Dkt. 50 (passim). Defendant points out Plaintiffs’ answers fail
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to address whether Plaintiffs are asserting the Murano’s actuator pump failed and
caused the fire because it contained a defective oil seal; Plaintiffs’ answers fail to
provide the facts upon which Plaintiffs rely in asserting the actuator pump failed, and
whether Plaintiffs’ claim that the ABS actuator pump in the Blumricks’ Murano was
manufactured in the same lot as those installed in different Nissan vehicles and
recalled. Defendant’s Reply, Dkt. 51, at 13. Plaintiffs’ answers also fail to explain how
the Murano, which was presumably parked in the Blumricks’ garage for some period of
time prior to the fire, could have generated sufficient electrically induced heat in the ABS
circuit board which could have caused a fire if brake fluid had come into contact with the
board, as Plaintiffs allege, while the Murano was parked in the garage. While Plaintiffs
assert the Murano failed to “perform properly” when the Blumricks “operated” the
Murano in a reasonably foreseeable manner, Plaintiffs’ Memorandum, Dkt. 50, at 8, the
record does not indicate the Murano was being operated when the fire started or that
the Blumricks had recently operated the vehicle. Both this court and New York State
courts have held that defendants are entitled to interrogatory answers that sufficiently
detailed in discovery the technical bases for a plaintiff’s claim of negligent design or
manufacture, strict liability and breach of warranty claims. See Brown v. United States,
179 F.R.D. 101, 106 (W.D.N.Y. 1998) (in FTCA action plaintiff was required to answer
fully defendant’s interrogatory requesting plaintiff to identify the “bases” for plaintiff’s
claims of negligence, strict liability, and breach of warranty regarding a plastic injection
mold which injured plaintiff); Nutting v. Ford Motor Company, 593 N.Y.S.2d 111, 112-13
(3d Dept. 1993) (plaintiff required to provide interrogatory answers stating specific
information regarding alleged defects, malfunctions, or improper design of automobile
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involved in accident) (citing Wiseman v. American Motors Sales Corp., 475 N.Y.S.2d
885, 886-87 (2d Dept. 1984) (plaintiff’s answers to defendant’s interrogatories failed to
provide sufficient information concerning, inter alia, the nature of the defects in the
alleged component parts of the vehicle involved in plaintiff’s accident)). Accordingly, the
court finds Plaintiffs’ answers to Defendant’s Interrogatories Nos. 14 and 15 are
deficient and Defendant’s motion should be GRANTED as to this issue.
CONCLUSION
Based on the foregoing, Defendant’s motion is GRANTED. Plaintiffs shall
provide supplemental document production and interrogatory answers consistent with
the court’s determination herein within 30 days.
As required by Fed.R.Civ.P. 37(a)(5)(A), Plaintiffs shall show cause not later than
20 days from the date of this Decision and Order why Defendant’s expenses, including
attorneys fees, in connection with Defendant’s motion should not be awarded.
Defendant’s response shall be filed within 10 days; Plaintiffs’ reply shall be filed within
five days thereafter. Oral argument shall be at the court’s discretion.
SO ORDERED.
/s/ Leslie G. Foschio
_________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dates: September 28, 2023
Buffalo, New York
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