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Chautauqua Commerce Park LLC v. Main Street America Assurance Co

Motion to Compel Response to Rule 45 Subpoena for Property Repair Records Is Granted

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DECISION and ORDER This matter was referred to the undersigned for all non-dispositive pretrial matters by Hon. William M. Skretny by order dated March 9, 2021 (Dkt. 8).1 The matter involves a Rule 45 subpoena for records issued by Defendant pertaining to Respondent WNY Fire Protections, LLC’s (“WNY Fire”) inspection and repairs at 196 Newton Street, Fredonia, New York, property owned by Plaintiffs (“the property”) in connection with water damage to the property caused by a freeze on February 1, 2019 (“the subpoena”). Dkt. 40-1 9. The Fourth Amended Scheduling Order requiring discovery be completed by August 15, 2022, has been stayed pending the outcome of Defendant’s motion (Dkt. 48). Specifically, Plaintiffs allege that Defendant has failed to pay Plaintiffs’ claims for water loss to the property in the amount of approximately $302,000, Compl.

26, 28; Defendant has made payments to Plaintiffs of $131,869.46 in covered losses. Compl. 31. Defendant asserts that it has denied coverage based on its belief that there were multiple and separate causes for Plaintiffs’ losses, Dkt. 40-1 10, thus making the records sought by the subpoena relevant to Defendant’s defense. According to Defendant, the records will include documentation relating to WNY Fire’s extensive — 160 man hours — inspection and repair activities at the property. Dkt. 40-2 11. See also, Dkt. 40-2 at 12, 14 (letters dated January 21, 2021 and March 15, 2019 from WNY Fire to Allan Steinberg at Ark Wholesale outlining services performed by WNY Fire in connection with its inspection and repair of the property). Defendant avers it has made several unsuccessful attempts to obtain the records without resorting to issuing a subpoena. Dkt. 40-1

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