FILED: ULSTER COUNTY CLERK 07/06/2023 11:43 2B
`FILED: ULSTER COUNTY CLERK 07/06/2023 11:43 AM
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`NYSCEF DOC. NO. 146
`NYSCEF DOC. NO. 146
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`INDEX NO. EF2020-1189
`INDEX NO. EF2020-1189
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`RECEIVED NYSCEF: 07/06/2023
`RECEIVED NYSCEF: 07/06/2023
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`STATE OF NEW YORK
`SUPREME COURT
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`COUNTY OF ULSTER
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`JOHN DOEand JOHN DOEII,
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`Plaintiffs,
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`DECISION and ORDER
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`-against-
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`Index #: EF2020-1189
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`WILLIAM J. DEDERICK and
`KINGSTON CITY SCHOOL DISTRICT,
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`Defendants.
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`APPEARANCES: Daniel R. Lazaro, Esq.
`Buchanan Ingersoll & Rooney P.C.
`Attorneysfor Plaintiff
`640 Sth Avenue, 9" Floor
`New York, New York 10019
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`Miranda L. Soto, Esq.
`Buchanan Ingersoll & Rooney P.C.
`Attorneysfor Plaintiff
`One Biscayne Tower, Suite 1500
`Miami, Florida 33131
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`Daniel T. Stabile, Esq.
`Winston & Strawn
`Attorneys for Plaintiff
`200 South Biscayne Boulevard
`Suite 2400
`Miami, Florida 33131
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`Patrick T. Gartland, Esq., Brooke D. Youngwirth, Esq.
`Corbally, Gartland and Rayyaleyea, LLP
`Attorneysfor Plaintiff
`35 Market Street
`Poughkeepsie, New York 12601
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`Mark C. Rushfield, Esq.
`Shaw, Pereison, May & Lambert, LLP
`Attorneys for Defendant Kingston City SchoolDistrict
`445 Hamilton Avenue, #1102
`White Plains, New York 10601
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`FILED: ULSTER COUNTY CLERK 07/06/2023 11:43 2B
`FILED: ULSTER COUNTY CLERK 07/06/2023 11:43 AM
`NYSCI EF DOC. NO. 146
`NYSCEF DOC. NO. 146
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`
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`INDEX NO. EF2020-1189
`INDEX NO. EF2020-1189
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`RECEIVED NYSCEF:
`07/06/2023
`RECEIVED NYSCEF: 07/06/2023
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`Lewis Silverman, Esq., Valentina Lumaj, Esq.
`Silverman & Associates
`Attorneys for Defendant Kingston City School District
`445 Hamilton Avenue, #1102
`White Plains, New York 10601
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`Dylan S. Gallagher, Esq.
`O’Connor & Partners, PLLC
`Attorneysfor Defendant William J. Dederick
`255 Wall Street
`Kingston, New York 12401
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`Robert P. Louttit, Esq.
`Hurtitz Fine, P.C.
`Attorneys for Non-Parties Utica National Insurance Company, Utica
`Mutual Insurance Company, and Graphic Arts Mutual Insurance
`Company
`575 Broad Hollow Road
`Melville, New York 1174
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`Mackey,J.
`By interim Decision and Order of May 19, 2023 (the “interim decision”), this Court
`granted a motion to compel brought by the plaintiffs to the extent that non-parties Graphic
`Arts Mutual Insurance, Utica Mutual Insurance Company, and Utica National Insurance
`Company (collectively referred to in the singular as “Utica National”) were directed to
`provide the Court, for an im camera inspection, complete, unredacted copies of certain
`documents which the plaintiffs demanded pursuant
`to a document subpoena issued by
`counsel for the plaintiffs,! but which Utica National withheld as privileged. Utica National
`subsequently submitted those records and the Court has completed its review.
`By way of background, this action is one brought by the anonymousplaintiffs against
`defendants William J. Dederick (“Dederick”) and the Kingston City School District (the
`“School District”) pursuant to the New York State Child Victims Act, alleging that between
`1982 and 1984, Dederick, a teacher (and later an administrator) at the School, engaged in
`sexual abuseofthe plaintiffs both on and off school grounds; that Dederick sexually abused a
`number of other minor students of the School District; and that the School District knew or
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`should have known between 1982 and 1984 both that Dederick had a propensity to engage in
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`‘Familiarity with the Court’s interim decision is presumed.
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`FILED: ULSTER COUNTY CLERK 07/06/2023 11:43 2B
`FILED: ULSTER COUNTY CLERK 07/06/2023 11:43 AM
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`NYSCEF DOC. NO. 146
`NYSCEF DOC. NO. 146
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`INDEX NO. EF2020-1189
`INDEX NO. EF2020-1189
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`RECEIVED NYSCEF: 07/06/2023
`RECEIVED NYSCEF: 07/06/2023
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`sexual abuse of children and that he was sexually abusing minor students, including the
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`plaintiffs. The complaint asserts causes of action against the School District sounding in
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`negligence, negligent hiring and retention and negligent supervision of Dederick and the
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`plaintiffs.
`On December 22, 2022, plaintiffs served Utica National’ with a document subpoena
`seeking the production of, among other things:*
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`3. Your claim file for claim number 10215102.
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`4. All documents You relied on to determine
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`coverage for claim number 10215102.
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`5. All communications You had with anyone
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`related to claim number 10215102.
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`In the interim decision, this Court directed that Utica National provide documents
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`responsive to these three items to the Court for purposes of conducting an im camera
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`inspection.
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`In response to the interim decision, Utica National has submitted ten individual
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`email communications and a “Bill Analysis Report,” Bates stamped numbered 000004
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`through 000247, hereinafter referred to only by the last three digits of each document, for the
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`Court’s review. Utica National has also provided a privilege log with respect to these
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`documents,
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`indicating the legal ground upon which the claim of privilege is asserted, a
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`description of the document, the document’s subject matter, and the date of each document.
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`CPLR § 3101 provides for broad discovery of all documents which are “material and
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`necessary” to the claims or defenses in an action (CPLR § 3101{a]). However,
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`it also
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`establishes
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`three
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`categories of protected materials: privileged materials,
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`such
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`as
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`attorney-client communications under CPLR § 4503, are absolutely immune from discovery
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`(CPLR § 3101{b]); attorneys’ work product, which is also absolutely immune (CPLR §
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`3101[c}); and materials prepared in anticipation of litigation, or trial preparation materials,
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`which are subject to discovery only upon a showing of substantial need and undue hardship
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`in obtaining the substantial equivalent of the materials by other means (CPLR § 3101[d];
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`Utica National is the School District’s liability insurer and is apparently defending the action on the
`School District’s behalf under a reservation of rights.
`*The Court resolved the four remaining categories of documents requested in the subpoenainits interim
`decision,
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`FILED: ULSTER COUNTY CLERK 07/06/2023 11:43 2B
`FILED: ULSTER COUNTY CLERK 07/06/2023 11:43 AM
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`NYSCI
`EF DOC. NO. 146
`NYSCEF DOC. NO. 146
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`INDEX NO. EF2020-1189
`INDEX NO. EF2020-1189
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`RECEIVED NYSCEF:
`07/06/2023
`RECEIVED NYSCEF: 07/06/2023
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`Venture v Preferred Mut. Ins. Co., 153 AD3d 1155, 1158 [1* Dept. 2017]). Further, the
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`burden of establishing the privilege is on the party asserting it and the protection must be
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`narrowly construed (/d. at 1159).
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`Here, Utica National alleges the withheld documents are variously prepared in
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`anticipation oflitigation or subject to attorney-clientprivilege.
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`Based on the foregoing, the Court has reviewed the submitted documents to determine
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`whether any privilege, privacy, or other concerns preclude disclosure and finds as follows:
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`004-013 The first document is email correspondence trom June 2020 between Utica
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`National’s in house counsel, Kim Doremus-Green to “Home Office Claims Mailbox.” The
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`correspondence is between Utica National employees and counsel and is protected by the
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`attorney-client privilege.
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`In any event, the Court has reviewed the correspondence and finds
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`that it does not contain any substantive or relevant information to this action.
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`027-035 The second document is email correspondence from January 2020 between
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`the School District and Utica National employees. Upon review of the correspondence, Utica
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`National has demonstrated that it was “primarily prepared in anticipation oflitigation” and is
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`thus privileged (MBIA Ins. Corp. v Countrywide Home Loans, 93 A.D.3d 574 [1° Dept.
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`2012]).
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`In any event, the Court has reviewed the correspondence and finds that it does not
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`contain any substantive or relevant information to this action.
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`039-040 The third document is email correspondence between Kim Doremus-Green
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`to “Home Office Claims Mailbox.”
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`It contains communications between Utica National
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`employees. The Court finds that this document may be withheld as it was prepared in
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`anticipation oflitigation.
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`In any event, the Court has reviewed the correspondence andfinds
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`that it does not contain any substantive or relevant information.
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`045-046, 049-050, 053-054, 057-066 The fourth, fifth, sixth and seventh documents
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`are email chains between Kim Doremus-Green to “Home Office Claims Mailbox.” These
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`documents contain correspondence between Utica National employees and counsel. The
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`Court finds that these documents may be withheld as prepared in anticipation oflitigation
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`and attorney-client privilege.
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`In any event, the Court has reviewed the correspondence and
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`finds that there is no substantive or relevant information contained therein.
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`FILED: ULSTER COUNTY CLERK 07/06/2023 11:43 2B
`FILED: ULSTER COUNTY CLERK 07/06/2023 11:43 AM
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`NYSCEF DOC. NO. 146
`NYSCEF DOC. NO. 146
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`
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`INDEX NO. EF2020-1189
`INDEX NO. EF2020-1189
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`RECEIVED NYSCEF: 07/06/2023
`RECEIVED NYSCEF: 07/06/2023
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`067-117 The eighth document is email correspondence with a date range of January
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`27, 2020 to February 21, 2020 between Kim Doremus-Green to “Home Office Claims
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`Mailbox” and Joseph Sbardella (a Utica National claims representative) to “Home Office
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`Claims Mailbox.” The document contains communications among Utica National personnel
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`discussing coverage. The Court finds that this document maybe withheld as prepared in
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`anticipation oflitigation.
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`In any event, the Court has reviewed the correspondence and finds
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`that it does not contain any substantive or relevant information.
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`120-166, 209-247 The ninth document is email correspondence with a date range of
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`February 21, 2020 and June 15, 2020 between Kim Doremus-Green to “Home Office Claims
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`Mailbox.” The eleventh document is email correspondence with a date range of February
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`202 and May13, 2020 between Kim Doremus-Green to “Home Office Claims Mailbox.”
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`These email chains contain discussions between Utica National and its counsel concerning
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`insurance coverage in anticipation oflitigation.
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`In any event, the Court has reviewed the
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`correspondenceandfindsthat it does not contain anysubstantive or relevant information.
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`201-208 The tenth document is a report concerning counsel’s fees for representing
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`Utica National. This documentis irrelevant to this action and need notbe disclosed.
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`Utica National shall disclose to plaintiffs all of the remaining documents submitted
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`for in camera review, within 20 days from the date hereof.
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`SO ORDERED.
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`ENTER.
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`Dated: July S, 2023
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`Albany, New York
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`L. Michael Mackey, JSC
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`This memorandum constitutes the Decision and Order of the Court. The Court has
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`uploaded the original Decision and Order to the case record in this matter maintained on the
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`NYSCEF website, whereuponit is to be entered and filed by the Office of the CountyClerk.
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`FILED: ULSTER COUNTY CLERK 07/06/2023 11:43 2B
`FILED: ULSTER COUNTY CLERK 07/06/2023 11:43 AM
`
`NYSCEF DOC. NO. 146
`NYSCEF DOC. NO. 146
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`INDEX NO. EF2020-1189
`INDEX NO. EF2020-1189
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`RECEIVED NYSCEF: 07/06/2023
`RECEIVED NYSCEF: 07/06/2023
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`Counsel is not relieved from the applicable provisions of CPLR 2220 regarding service and
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`notice of entry.
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`Papers considered:
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`_NYSCEF Documents 114 - 144, Email dated June 17, 2023 with
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`attachments.
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`6 of 6
`6 of 6
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