Fiserv Solutions, Inc. v XL Specialty Ins. Co., 2011 NY Slip Op 03740 [84 AD3d 480]

May 5, 2011

Appellate Division, First Department

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Steptoe & Johnson LLP, New York (Christopher T. Lutz of the District of Columbia bar admitted pro hac vice of counsel), for appellant.

Reed Smith LLP, New York (Wendy H. Schwartz of counsel), for respondents.

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered June 7, 2010, which denied defendant’s motion to compel discovery, unanimously reversed, on the law and the facts, without costs and the motion granted. Appeal from order, same court and Justice, entered September 21, 2010, which denied defendant’s motion for leave to renew, unanimously dismissed, without costs, as academic.

We find that defendant seeks not to engage in improper post-claim underwriting ( see Banks v Paul Revere Life Ins. Co. , 31 F Supp 2d 82, 85 n 5 [1998]) but to determine the scope of coverage under the insurance policy. Thus, the disclosure defendant requested is material and necessary in the defense of this action (CPLR 3101). Concur—Tom, J.P., Mazzarelli, Acosta, DeGrasse and RomÁn, JJ..