All Boro Psychological Servs., P.C. v Allstate Ins. Co., 2013 NY Slip Op 51124(U)(App. Term 2d Dept. 2013)
(1) SIU file is not priveleged
“To avoid having to produce its SIU file, defendant had to establish that its SIU file was prepared solely for litigation (Landmark Ins. Co. v Beau Rivage Rest., 121 AD2d 98, 101 [1986]; see also Bombard v Amica Mut. Ins. Co., 11 AD3d 647 [2004]). As defendant failed to demonstrate that it had decided to deny plaintiff’s claims prior to commencing its investigation, the contents of defendant’s SIU file are not privileged and are discoverable (Bombard, 11 AD3d at 648).”
(2) Stipulation regarding global fact not binding in other litigation
“defendant previously entered into stipulations, in unrelated actions, which, among other things, stated that, as of the date the stipulations were entered into, plaintiff was “in full compliance with any licensing requirements affecting its right to obtain reimbursement under the applicable No Fault laws and regulations.” However, as the issue was resolved in a stipulation and not after it was actually litigated, the doctrine of collateral estoppel is inapplicable”
So the Mallela compliance stipulation is at best limited to the case where the stipulation is signed. The only way to achieve what Mr. All Boro is doing appears to be through a declaratory judgment action
(3) Plaintiff bears the burden to show disclosure is palpably improper
“Since plaintiff failed to establish that the requested discovery is privileged or palpably improper, plaintiff is obligated to produce the information sought. Defendant further established its entitlement to depose Vladimir Grinberg and plaintiff’s owner, Dr. John Braun (see CPLR 3101 [a];”
