Fonda v. Nationwide Mutual Fire Insurance

Order unanimously modified and, as modified, affirmed, with costs to plaintiff, in accordance with the following memorandum: On its motion for a protective order, defendant, a fire insurance company, failed to sustain its burden of showing that the report of its investigator was privileged. Its affidavit in support of the motion is devoid of any facts indicating that the report was created exclusively in preparation for litigation (see Hawley v Travelers Ind. Co., 90 AD2d 684; Yannick v Tube City Iron & Metal Co., 77 AD2d 623). We may not consider matters in a party’s brief which are not…