Litigation Alert:  New Disclosure Obligations Under the Amendments to CPLR 3101(f)

As of this month, the NYS Comprehensive Insurance Disclosure Act is in effect. Its new disclosure requirements should be noted by any defense or insurance counsel. 

Many New York civil litigants and their lawyers are familiar with routine insurance disclosures under the former CPLR 3101(f), which made discoverable the “existence and contents” of insurance policies that may provide coverage to the defendant.  As a matter of routine, defendants for many years complied with a demand for this information by simply disclosing the identity of the insurer, the limits and “aggregate” limits, and the effective date of the policy.  In most cases, disclosing this basic information was sufficient.

The amended CPLR 3101(f) is different in very important respects, including the following:

• Disclosure is automatic and must be made at the outset of the case – within 60 days of service of an answer (for pending cases, disclosure must be made by March 1, 2022);
• Disclosure is now far broader. It includes numerous categories of “information and documentation” pertaining to the “existence and contents” of any potentially responsive policies;
• CPLR 3101(f) details certain categories of information that must be included, including all primary, excess and umbrella policies (arguably, under the text of the statute itself, even if it is implausible for such policies to be impacted); copies of such policies; claims adjuster and TPA information; potential erosion of available limits; and policy applications;
• CPLR 3122-b was amended to require that 3101(f) disclosures be sworn and notarized affidavit by the defendant and an attorney certification stating that the information provided is complete and that “reasonable efforts have been undertaken…to ensure that [the] information remains accurate and complete”; and
• The above disclosure obligation is ongoing.

Setting aside issues of scope and interpretation of the amendments, Defendants and their counsel must keep in mind a few practical notes:

• The legislation specifies that in pending matters, the deadline for the new disclosures is March 1, 2022, which is therefore the earliest date for compliance;
• There may be new (2022) amendments that would impact the timing and scope of disclosure; and
• For now, counsel should be careful to study the amendment (linked above).

The amendments to 3101(f) may have been high-minded, but they are a recipe for chaos in the courts including vast numbers of motion filings. Let us hope the New York legislature revisits the statute in the near term. Pending that, lawyers, defendants and insurers should be mindful of the initial, March 1, 2022 deadline.

This content is provided as background and does not constitute legal advice.  The attorneys at our firm have many years of experience with insurance coverage issues in New York courts. For more information or to schedule a free consultation, contact us at info@lalorattorneys.com / 646.818.9870.