This action arises from water infiltration of a Manhattan apartment owned by plaintiffs, Jessica and Dennis Biales. Chubb Insurance is the insurer for defendants 10 East End Avenue Owners, Inc., and Wallack Management Company, Inc. Chubb hired nonparty H2M Architects, Engineers, Geology, Land Surveying, and Landscape Architecture, D.P.C. (H2M), to investigate the conditions inside plaintiffs' apartment. H2M produced its first report in June 2022. Defendants eventually released that report to plaintiff in February 2023.

In February 2025, plaintiffs issued a subpoena against H2M for information about its inspections of the apartment—including an additional 2023 inspection—and its communications with defendants. Defendants move to quash the subpoena and for a protective order. The motion is granted in part.

Defendants cross-move for attorney fees and costs against plaintiffs. Defendants contend that plaintiffs' motion is frivolous. The cross-motion is denied.

1. Plaintiffs argue that defendants lack standing to challenge the nonparty subpoena. The court disagrees. A party against whom the subpoena is not "directed has standing to move to quash the subpoena where he or she has a proprietary interest in the subject documents or where they involve privileged communications." (Hyatt v State of Cal. Franchise Tax Bd., 105 AD3d 186, 194-195 [2d Dept 2013].) Defendants have a proprietary interest in the information plaintiffs seek. The information sought involves premises owned by defendants. (See id. at 194 [holding that plaintiff has a proprietary interest in documents containing information about property plaintiff owns].) Defendants have standing to challenge the subpoenas issued to H2M.

2. Defendants also argue that the information plaintiffs seek from H2M was prepared in anticipation of litigation and is therefore qualifiedly immune to discovery under CPLR 3101 (d) (2).^[FN1] (Cf. Brooklyn Union Gas Co. v American Home Assur. Co., 23 AD3d 190, 190 [1st Dept 2005] ["Reports of insurance investigators or adjusters, prepared during the processing of a claim, are discoverable as made in the regular course of the insurance company's business."].)

CPLR 3101 (d) (2) provides a qualified immunity for evidence "prepared in anticipation of litigation or for trial by or for another party, or by or for that other party's representative (including an attorney, consultant, surety, indemnitor, insurer or agent)." A party asserting the protection must establish that the requested documents were "prepared primarily, if not solely, in anticipation of litigation." (JP Foodservice Distribs., v Sorrento, Inc., 305 AD2d 266, 266 [1st Dept 2003].) If that burden is met, the opposing party, to obtain that discovery, must show that it has a "substantial need and inability to obtain this information without undue hardship." (Matter of Peerenboom v Marvel Entertainment, LLC, 160 AD3d 439, 440 [1st Dept 2018], citing CPLR 3101 [d] [2].)

Here, defendants have not satisfied their initial burden. They have not provided evidence that Chubb's hiring of H2M was in anticipation of litigation as opposed to an effort to remediate issues in the apartment or as an "an inherent and long-standing part of [H2M's] business." (Bank of NY Mellon v WMC Mtge., LLC, 140 AD3d 585, 585 [1st Dept 2016] [internal quotation marks omitted].) Defendants note that plaintiffs had retained counsel by 2021 and that Chubb—defendants' insurer—retained H2M. (See NYSCEF No. 129 at 4.) The court is unpersuaded, however, that these facts, without more, prove that Chubb hired H2M to prepare investigations in anticipation of potential litigation involving defendants. (Cf. Peerenboom, 160 AD3d at 440 [holding that documents about a certain investigation were entitled to qualified protected when the record reflected that the investigator "was hired by [nonparty's] attorney to conduct an investigation in connection with the pending Florida action, which includes claims of defamation broadly implicating petitioner's reputation"]; MBIA Ins. Corp. v Countrywide Home Loans, Inc., 93 AD3d 574, 574 [1st Dept 2012] [holding that documents about remediation efforts were prepared in anticipation of litigation when "plaintiff submitted evidence, including retainer agreements, showing that its counsel retained consultants to help provide legal advice to plaintiff with respect to potential legal claims against defendants"].)

Indeed, defendants' memorandum of law is the sole document supporting the inference that Chubb hired H2M in anticipation of litigation. (See New York Schools Ins. Reciprocal v Milburn Sales Co., Inc., 105 AD3d 716, 718 [2d Dept 2013] ["An attorney's affirmation containing conclusory assertions that requested documents are conditionally immune from disclosure pursuant to CPLR 3101[d][2] as material prepared in anticipation of litigation, [*2]without more, is insufficient to sustain the movant's burden of demonstrating that the materials were prepared exclusively for litigation."].)

3. Defendants also contend that plaintiffs' demands are too broad. Plaintiff seeks a copy of H2M's entire file for Chubb and, in the alternative, "all reports, notes and any other work product (including all drafts thereof) prepared in connection with your engagement in relation to a claimed loss at 10 East End Avenue, Unit 6J, New York, New York, relating to any and all visits and inspections of that unit on any date." (NYSCEF No. 144 at 3 [subpoena].) Plaintiff seeks all communications between H2M and defendants and H2M and Chubb with respect to the project and a copy of H2M's file relating to inspections at the premises from January 2018 onward. (Id.) Plaintiffs also seek to depose Ashley Little, H2M's project manager. (Id.)

According to defendants, plaintiffs already have H2M's 2022 report and therefore that much of the sought-after discovery is not necessary. Plaintiffs argue that the discovery they seek is relevant to their fraud and breach-of-fiduciary-duty claims and that their priority is to obtain "certain discrete categories of information beyond the June 2022 report itself." (NYSCEF No. 141 at 7.) Plaintiffs contend that, at minimum, they are entitled to information reflecting when Chubbs hired H2M, "when H2M first shared any testing results or other findings with the Defendants; what Defendants' response to those findings was; why Defendants refused to share the report . . . for nine months; what were H2M's findings following its second visit to the apartment in November 2023, whether a report of that visit exists, and why any results have not been shared with Plaintiffs; and what other findings, conclusions or recommendations H2M may have prepared with respect to the harmful conditions in the apartment." (Id. at 8.)

The court agrees that plaintiffs' demands are too broad. But the concludes that plaintiff is entitled to seek the specific information they identify in opposing this motion. (See id.) These identified pieces of information are relevant and sufficiently narrow. Defendants may re-serve H2M with demands tailored to reflect requests for those pieces of information.

4. Finally, plaintiffs cross-move under 22 NYCRR 130-1.1 (c) for attorney fees and costs incurred in opposing defendants' motion. Plaintiffs contend that defendants' motion is completely devoid of merit and therefore frivolous. The court disagrees. Defendants have been successful, in part, on their motion. And the questions defendants raise in their motion require a careful analysis; that suggests that their arguments are not frivolous.

Accordingly, it is

ORDERED that defendants' motion to quash the subpoena issued to H2M and for a protective order is granted only to the extent that plaintiffs must re-serve a narrowed form of their requested reflecting requests for the specific information discussed above, and is otherwise denied; and it is further

ORDERED that plaintiffs' cross-motion for attorney fees and costs is denied.