New York Central Mutual Fire Insurance Company v. Nissan North America, Inc.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_____________________________________

NEW YORK CENTRAL MUTUAL FIRE

INSURANCE COMPANY as subrogee of

Wayne and Carol Blumrick, DECISION

WAYNE BLUMRICK, and

CAROL BLUMRICK, ORDER

Plaintiffs,

v.

22-CV-272WMS(F)

NISSAN NORTH AMERICA, INC.,

Defendant.

_____________________________________

APPEARANCES: RUPP PFALZGRAF LLC

Attorneys for Plaintiffs

MARCO CERCONE,

CHRISTOPHER J. SASIADEK,

BRANDON M. SNYDER,

MATTHEW F. WITHIAM-LEITCH, of Counsel

1600 Liberty Building

424 Main Street

Buffalo, New York 14202

SHOOK, HARDY & BACON, L.L.P.

Attorneys for Defendant

HOMER B. RAMSEY,

JOSHUA A. WEINER, of Counsel

1 Rockefeller Plaza, 28th Floor

New York, New York 10020

JURISDICTION

This case was referred to the undersigned by order of Hon. William M. Skretny

for all non-dispositive pretrial matters on May 5, 2022 (Dkt. 7). It is presently before the

court on Defendant’s Motion To Compel, filed June 12, 2023 (Dkt. 42).

BACKGROUND

In this action, commenced April 8, 2022, Plaintiffs allege Defendant (“Defendant”

or “Nissan”) is liable for damages to Plaintiffs Blumricks’ (“Blumricks”) property as a

result of a fire in the Blumricks’ garage which occurred on June 17, 2021, caused by a

defectively designed or manufactured seal within the actuator pump of the Automatic

Brake System (“ABS”) on Blumricks’ 2020 Nissan Murano SUV which the Blumricks

leased from a local Nissan dealer on September 18, 2020. Plaintiffs assert three state

law claims including negligence, strict product liability and breach of express and

implied warranties.

Defendant’s Motion to Compel was filed June 12, 2023 (Dkt. 42) (“Defendant’s

motion”) including Declaration of Joshua A. Weiner In Support Of Defendant Nissan

North America, Inc.’s Motion To Compel Plaintiffs To Provide Proper And Complete

Discover (Dkt. 43) (“Weiner Declaration”) together with exhibits A – I (Dkts. 43-1 – 43-9)

(“Weiner Declaration Exh(s). __”) and Defendant’s Memorandum Of Law In Support Of

Motion To Compel Plaintiffs To Provide Proper And Complete Discovery (Dkt. 44)

(“Defendant’s Memorandum”) together with exhibits A – C (Dkts. 44-1, 44-2 and 44-3).

(“Defendant’s Memorandum Exh(s). __”). Plaintiffs’ opposition, Declaration of Matthew

F. Withiam-Leitch, (Dkt. 50) (“Withiam-Leitch Declaration”) was filed July 5, 2023

together with exhibits A – D (Dkts. 50-1 – 50-4) (“Withiam-Leitch Declaration Exh(s)

___”) and Plaintiffs’ Memorandum of Law (Dkt. 50-2) (‘Plaintiffs Memorandum”). On

July 17, 2023, Defendant filed Defendant’s Reply Memorandum Of Law In Further

Support of Defendant’s Motion (Dkt. 51) (Defendant’s Reply”). Oral argument was

deemed unnecessary.

FACTS1

On June 17, 2021, Plaintiff Carol Blumrick heard a noise in the Blumricks’

unattached garage at 31 State Street, Middleport, New York, and upon entry to the

garage noticed black smoke coming from a back wall of the garage in which the 2020

Murano (the Murano”) was located or from under Murano itself. Plaintiff Wayne

Blumrick was working in an apartment building adjacent to the Blumrick residence. As a

result of the fire (“the fire”) the Blumricks’ Murano which was insured by Plaintiff New

York Central Mutual Fire Insurance Company (“New York Central”), was a complete

loss, and the garage was destroyed along with other damage to the Blumricks’ property

which were also insured by New York Central. Plaintiffs seek approximately $183,000

in damages including reimbursement to Plaintiff New York Central for payments of

$92,085.22 made to the Blumricks under their insurance policy with New York Central

and approximately $81,000 in uninsured losses incurred by the Blumricks. Plaintiffs

claim the fire was caused by a defective seal on the 2020 Murano’s ABS actuator pump

assembly. Plaintiffs rely on the fact that the National Highway Transportation Safety

Administration (“NHTSA”) required Defendant Nissan to recall 2015-2018 Muranos

along with other models manufactured by Nissan based on a defective ABS actuator

pump seal similar to the seal on Blumricks’ 2020 Murano’s ABS which the Plaintiffs’

allege allowed brake fluid to leak into the ABS circuit board resulting in a fire.

1 Taken from the papers and pleadings filed in connection with this action.

DISCUSSION

Defendant’s motion raises seven issues. First, Defendant requests that Plaintiffs’

General Objections to Defendant’s Interrogatories and Document Requests be stricken

for violation of Fed.R.Civ.P. 34(b)(2)(B) – (C) (“Rule 34(b)(2)(B), (C)”). As amended in

2015, Rule 34(b)(2)(B) requires the responding party to “state with specificity the

grounds for objecting to the [document] request including the reasons” and Rule

34(b)(2)(C) requires that an objection state whether responsive materials are being

withheld on the basis of “[the stated] objection.” Thus, courts reject general objections

unless such objections pertain to each document request such as when a general

objection is based on privilege or work product protection and applies to each document

production request. See Sovereign Cape Cod Investors LLC v. Eugene A. Bartow

Insurance Agency, Inc., 2022 WL 624553, at *3 (E.D.N.Y. Mar. 3, 2022) (“general

objections may be appropriate only if the objection applies to every response to every

document request”) (citing Fischer v. Forrest, 2017 WL 773694, at *3 (S.D.N.Y. Feb. 28,

2012) (holding that “incorporating all of the General Objections into each response [to a

Rule 34(a) request] violates Rule 34(b)(2)(B)'s specificity requirement as well as Rule

34(b)(2)(C)'s requirement to indicate whether any responsive materials are withheld on

the basis of an objection,” and that “[g]eneral objections should rarely be used after

December 1, 2015 unless each such objection applies to each document request (e.g.,

objecting to produce privileged material)” (underlining added)). See also Vann v. City of

Rochester, 2023 WL 4976002, at * 3 (W.D.N.Y. Aug. 3, 2023) (directing defendant to

supplement responses for production by withdrawing general objection and reasserting

objections as to specific documents).

In response, Plaintiffs assert that as their general objection was “primarily” based

on privilege, specifically, work product protection, Plaintiffs’ general objections fall within

the exception to Rule 24(b)(1)(B). Plaintiffs’ Memorandum, Dkt. 50-2 at 2-3. However,

careful review of Defendant’s Requests indicates few, if any, of Defendant’s production

requests are likely to involve any such assertions of privilege or work product protection.

For example, Defendant’s Request No. 1 requests Plaintiffs produce all documents

referenced or relied upon by Plaintiffs in answering Defendant’s First Set of

Interrogatories. See Weiner Declaration Exh. B, Dkt. 43-2 at 30. Defendant’s Request

No. 2 requests documents providing names and addresses for all witnesses to the fire,

id.; Defendant’s Request No. 3 requests documents showing the names and addresses

of all owners of the 2020 Murano at the time of the fire, id., Defendant’s Request No. 4

requests information concerning ownership of the property at issue, id., Defendant’s

Requests Nos. 5, 6 and 7 request information for any insurance policy on which a claim

has been made for damages to the Murano and the premises by the Blumricks together

with requests for Defendant to obtain copies of such information, id. at 3-4; Defendant’s

Request No. 9 seeks documents concerning any statements made by Defendant

regarding the subject of Plaintiffs’ action, id., at 5; Defendant’s Request No. 10 requests

witness and accident reports in possession of Plaintiffs or prepared in the regular

course of business relating to the fire and purported losses, id. at 5; Defendant’s

Request No. 11 seeks copies of all fire, police, adjustors and other reports relating to

the fire and alleged damages, id.; Defendant’s Request No. 12 requests copies of any

papers served in the instant case, id. at 5-6; Defendant’s Request No. 12 seeks

documents related to the ownership, maintenance and repair of the Murano, id. at 6;

Requests Nos. 13-14 request photographs and videos of the fire, id.; Requests Nos. 16-

18 seek documents pertaining to Plaintiffs’ damages, id.; Request No. 19 requests

copies of all government standards Plaintiffs contend the Murano failed to meet, id.;

Request No. 20 seeks documents relating to Plaintiffs’ claim that Nissan recalled

750,000 vehicles because of problems with their ABS system, id.; Defendant’s Request

No. 21 requests documents supporting Plaintiffs’ allegation that the Murano passed

inspection on September 18, 2020, id.; Request No. 22 seeks documents establishing

that the Blumricks’ Murano was within the NHTSA recall as Plaintiffs allege, id.;

Requests Nos. 23-28 seek documents supporting Plaintiffs’ assertion that the Murano’s

ABS actuator pump failed allowing brake fluid to leak into the ABS circuit board resulting

in an electrical short circuit which in turn caused the fire as a result of a design or

manufacturing defect, including a lack of warnings and thereby established a breach of

warranty, id., at 8-10; Defendant’s Requests Nos. 29-30 seek information concerning

Plaintiffs’ damages. Id. at 10. As can be seen from the foregoing recitation, none of

Defendant’s requests, on their face, are likely to implicate any plausible assertion of

privilege or work product protection. Therefore, Defendant’s requests do not establish a

basis for Plaintiffs’ assertion of privilege or work product protection against each of

Defendant’s document requests. See Sovereign Cape Cod Investors, LLC, 2022 WL

624553, at *3 (citing Fischer, 2017 WL 773694, at *3). Accordingly, Plaintiffs’

generalized objections lack any basis upon which to find any reason to apply the

exception to Rule 34(b)(2)(B) based on an asserted privilege, are therefore ineffective

and as such are overruled.2

2 Defendant’s request, Defendant’s Memorandum, Dkt. 44, at 7, for an order striking Plaintiffs’ General

Objections is, accordingly, unnecessary.

Second, Defendant challenges Plaintiffs’ Privilege Log (Weiner Declaration Exh.

G, Dkt. 43-7) based on a failure to comply with Fed.R.Civ.P. 26(b)(5)(A)(ii) (“Rule

26(b)(5)(A)(ii)”) and Local Rule of Civil Procedure 26(d)(1) (“L.Rule Civ.P. 26(d)(1)”).

Rule 26(b)(5)(A)(ii) and L.Rule Civ.P. 26(d)(1) which require assertions of privilege or

work product protection be stated in a description of the nature of the withheld

documents in a manner that, without revealing the privileged or work product protected

information, will enable the receiving party to assess the claim. Plaintiffs’ Privilege Log

asserts work product protection for all information post-dating New York Central’s

purported decision on June 25, 2021 (see Plaintiffs’ Memorandum, Dkt. 50-2, at 47) to

pursue a subrogation claim against Defendant, see Withiam-Leitch Declaration Exh. G,

Dkt. 50-1 at 48, and a lack of relevancy objection to six documents Plaintiffs provided in

redacted form including a Property Large Loss Report and five Claim Notes. Id. To be

effective, relevancy objections must be asserted at the time of a response to a Rule

34(a) document request is served, otherwise it is waived. See Lamparelli Construction

Company, Inc. v. Arrow Wood Products, Inc., 2016 WL 1387239, at * 1 (W.D.N.Y. Apr.

8, 2016) (“The general rule is that ‘a failure to respond or object to a discovery request

in a timely manner waives any objection which may have been available.”) (citing

cases). Here, a fair reading of Plaintiffs’ responses to Defendant’s Rule 34(a)

document production requests reveals no objection based on lack of relevancy was

timely interposed by Plaintiffs in response to Defendant’s document requests. See

Weiner Declaration Exh. D, Dkt. 43-4 (passim). Specifically, Plaintiffs’ objections were

limited to vagueness, overbreadth, and undue burdensomeness. See, e.g., id. at 6.

Therefore, to the extent Plaintiffs’ asserted ground for redaction as to the Large Loss

Report and five Claim Notes is based on a lack of relevancy, as the Plaintiffs’ Privilege

Log asserts, such objection was waived and Plaintiffs are therefore required to provide

to Defendant copies of each document in unredacted form.

As regards Plaintiffs withholding of post-subrogation created documents, referred

to as “Miscellaneous” documents, based on work-product protection, Plaintiffs’ Privilege

Log is deficient in two major respects. First, the Privilege Log fails to provide any

description of the withheld “Miscellaneous” documents contrary to the requirements of

Rule 26(b)(1), (5)(A)(ii) and Local R.Civ.P. 26(d)(1). Second, to the extent Plaintiffs

assert that all such documents are subject to work-product protection as created in

contemplation of litigation, see Fed.R.Civ.P. 26(b)(3)(A), based solely on Plaintiffs’

assertion that all documents created by an insurer after Plaintiff New York Central’s

decision to pursue subrogation on June 25, 2021, are thereby within the scope of work-

product protection, see Plaintiffs’ Memorandum, Dkt. 50-2, at 3-4, Plaintiffs are

mistaken. Courts have held that all documents created by an insurer post-subrogation

are not thereby subject to work-product protection as created in contemplation of

litigation absent a showing by the party asserting the protection that the document was

in fact created in contemplation of litigation. See Selective Ins. Co. of America v.

Swarey, 2011 WL 240750, at *2 (W.D.N.Y. Jan. 24, 2011) (court found upon review of

unredacted version of redacted documents submitted by parties that documents

contained “strategic and tactical comments regarding possible litigation, confirm[ing]

that they were made at a point where litigation was not only anticipated, but being

actively planned”); Weber v. Paduano, 2003 WL 161340, at *4 (S.D.N.Y. Jan. 22, 2003)

(“A party withholding insurance documents may not rest on conclusory allegations of

privilege, but must establish, by objective evidence, that the author of the document

anticipated litigation at the time that the document was created, and would not have

created the document in essentially the same way had the prospect of litigation not

existed.”) (“Weber”) (citing United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998)

(holding that whether document was prepared in anticipation of litigation means it was

prepared “because of the prospect of litigation”)) (underlining added). Moreover, even

documents created after instituting litigation does not relieve the withholding party of the

obligation to show that the document “would not have been prepared but for the

litigation.” Id. at *7 (citing In re Kidder Peabody Sec. Litig., 168 F.R.D. 459, 467 n. 6

(S.D.N.Y. 1996). In Weber, the court observed that all of the documents at issue were

authored within three months of the fire in that case, “suggesting that they were not

prepared in anticipation of litigation." Weber, 2003 WL 161340, at *9. Here, according

to Plaintiffs, the withheld documents were all created after Plaintiff New York Central

allegedly made the decision to subrogate on January 25, 2021, a mere four days after

the fire on June 21, 2021 thus casting doubt on whether New York Central’s decision to

pursue subrogation was in fact made on January 25, 2021. Further, a party’s failure to

satisfy such burden warrants granting a requesting party’s motion to compel. See

Fingerhut ex rel. Fingerhut v. Chautauqua Institute Corp., Inc., 2013 WL 5923269, at *4

(W.D.N.Y. Oct. 31, 2013) (granting plaintiff’s motion to compel seeking production of

materials identified in defendant’s privilege log where defendant fails to provide

sufficient information to enable court to determine whether withheld materials –

photographs – were in fact created in preparation for litigation); Weber, 2003 WL

161340, at *9, 15 (directing defendant to produce disputed documents within 30 days

based on defendant’s failures to provide evidence of insurer’s intent to litigate as to

each withheld documents).

Plaintiffs’ assertion (see Privilege Log, Dkt. 43-7) that the “Miscellaneous”

documents are within the scope of the attorney-client privilege fails for similar reasons.

First, the Privilege Log is woefully deficient in that it fails to provide even the barest

indicia of descriptiveness to enable an assessment whether the privilege under New

York law as applicable in a diversity action such as the instant case, see McNamee v.

Clemens, 2014 WL 1338720, at * 4 (E.D.N.Y. Apr. 2, 2014) (deficient privilege log failed

to permit reviewing court to determine whether the asserted privileges applied), should

be applied as required by Rule 26(b)(5)(A)(ii) and Local Rule 26(d)(1). Second,

Plaintiffs have not provided any objective evidence in the form of affidavits or otherwise

to support Plaintiffs’ assertion of the privilege. See Discussion, supra, at 8-18. See

also Adelman, 134 F.3d at 1202 (“in anticipation of litigation” extends work-product

protection to documents which “‘in light of the nature of the document and the factual

situation in the particular case, the document can fairly be said to have been prepared

or obtained because of the prospect of litigation.’”) (quoting Charles Alan Wright, Arthur

R. Miller, and Richard L. Marcus, 8 FEDERAL PRACTICE & PROCEDURE, § 2024 at 343

(1994) (italics in original)). Here, Plaintiffs assert Plaintiff New York Central decided to

pursue subrogation on June 25, 2021. See Plaintiffs’ Memorandum, Dkt. 50-1 at 4.

However, an assertion by counsel in a memorandum of law is insufficient to establish

the date of insurer’s decision to pursue subrogation, rather, evidence such as an

affidavit by a person with knowledge of the facts to establish a particular document is

entitled to work-product production is required. See Fingerhut ex rel., 2013 WL

5923269, at *3 (neither privilege log nor subsequent submissions by defendant enabled

court to determine whether withheld materials were subject to work-product protection);

Weber, 2003 WL 161340, at *9 (no affidavit or other evidence provided date defendant’s

insurer created withheld documents “in furtherance of an identifiable resolve to litigate”).

In sum, Plaintiffs’ failure to satisfy their burden to establish work-product protection or

privilege for the “Miscellaneous” documents created after the asserted decision by

Plaintiff New York Central to seek subrogation requires Defendant’s motion related to

this issue be GRANTED.

Third, Defendant complains that Plaintiffs’ redaction of documents Plaintiffs

produced, see Weiner Declaration ¶ 12, Dkt. 43, at 3, was in white rather than the usual

black making it difficult for Defendant to discern exactly what is being redacted.

Defendant’s Memorandum, Dkt. 44, at 17. Plaintiffs contend Defendant cannot cite to

any authority for Defendant’s request. Plaintiffs’ Memorandum, Dkt. 50-2, at 4-5. While

the extent of Defendant’s problem may be difficult for the court to assess, in the

absence of any examples provided by Defendant to the court, the court notes that

redactions in this district are typically done in black. Accordingly, Plaintiffs shall provide

to Defendant copies of all produced redacted documents using black to effect such

redactions.

Fourth, Defendant seeks more complete document production responsive to

Defendant’s First Set of Requests to Produce No. 13 served July 19, 2022. See Weiner

Declaration Exh. B, Dkt. 43-2, at 6, (“Document Request No. 13). Specifically,

Document Request No. 13 requests Plaintiffs produce all documents relating to the

purchase/acquisition, ownership, maintenance, repair, servicing, alternation,

manufacturing, storage and use of the 2020 Murano. In Plaintiffs’ response, Plaintiffs

stated all responsive documents are provided in the New York Central Claim File

attached as Exhibit A.3 Defendant objects that such response is deficient in that it fails

to expressly state whether the Blumricks have any responsive documents in their

possession. See Dkt. 44 at 17-18. In opposition, Plaintiffs contend Plaintiffs have

produced all relevant and non-privileged documents in Plaintiffs’ possession. Plaintiffs’

Memorandum, Dkt. 50-2, at 5. Initially, the court notes the absence of any valid

objection by Plaintiffs based on lack of relevance to Request No. 13. See Weiner

Declaration, Dkt. 43-4, at 17 (referencing Plaintiffs’ General Objections and objections

based on attorney-client privilege and work product protection). Plaintiffs also speculate

that responsive documents may have been lost in the fire which severely damaged the

Blumricks’ garage and the 2020 Murano. Dkt. 50-2 at 5. Nevertheless, Defendant is

entitled to learn whether any responsive documents exist or what steps Plaintiffs have

taken to ascertain the actual facts concerning their existence. See New York v. Grand

River Enterprises Six Nations, Ltd., 2020 WL 7350335, at * 3 (W.D.N.Y. Dec. 15, 2020)

(“it is basic that in responding to a request to produce documents pursuant to

Fed.R.Civ.P. 34(a), a responding party is required to engage in good-faith reasonable

effort to identify and locate all responsive documents subject to objections based on

lack of relevance, overbreadth, undue burdensomeness and privilege.”) (citing Guillory

v. Skelly, 2014 WL 4542468, at *10 (W.D.N.Y. Sept. 11, 2014) (requiring requested

party provide affidavit detailing steps taken to obtain the requested information and

explaining why such attempt was unsuccessful). Accordingly, Plaintiffs shall state

3 Exhibit A is a copy of New York Central’s Fire Loss Questionnaire submitted to the Blumricks. It does

not include a completed copy of the form by the Blumricks. Weiner Declaration Exh. D, Dkt. 43-4, at 8.

unambiguously whether any documents responsive to this Request No. 13 exist or

provide, in affidavit form, a statement explaining what steps were taken by Plaintiffs with

respect to ascertaining the existence of documents responsive to Request No. 13.

Fifth, Defendant seeks more complete responses to Defendant’s Requests Nos.

14 and 15 which request copies of color photographs, videotapes, movies and other

pictorial representations of the fire scene including damage to the Blumricks’ property

and the 2020 Murano and which depict the condition of such property and vehicle prior

to and after the fire. See Weiner Declaration Exh. B, Dkt. 43-2, at 6-7. Plaintiffs’

response includes a statement that all responsive documents were included in the New

York Central’s claim file and/or the Blumricks’ uninsured claim file. See Weiner

Declaration Exh. D, Dkt. 43-4, at 9. Defendant contends such responses are deficient

in that they fail to unambiguously state whether such photos and videos, etc. exist and

that Defendant should be given copies of the Fire Form For Loss Questionnaire and

N.Y. Standard Part II Fire Claim Form which the Blumricks are believed to have

completed but which Plaintiffs have refused to produce. See Defendant’s

Memorandum, Dkt. 44, at 18-19. The court agrees with Defendant that Plaintiffs’

response that “all non-privilege documents responsive” to Defendant’s request “have

been produced,” see Weiner Declaration Exh. H, Dkt. 43-8, at 4 (referencing Plaintiffs’

December 3, 2022 Letter to Defendant responding to Defendant’s October 10, 2022

Letter requesting Plaintiffs produce responsive documents), is inadequate and,

specifically, that it fails to include a copy of the Fire Form Loss Questionnaire and the

N.Y. Standard Part II Fire Claim Form fully executed by the Blumricks as referenced in

New York Central’s letter to the Blumricks which was produced to Defendant. See

Defendant’s Memorandum, Dkt. 44, at 19. Cf., Converse v. State Farm Fire and

Casualty Company, __ F.Supp.3d __; 2023 WL 4489510, at *9 (N.D.N.Y. July 12, 2023)

(recognizing defendant insurer has right to insurance proof of loss form in connection

with investigating claim). As with Plaintiffs’ insufficient response to Request No. 13,

see, Discussion, supra, at 11-13, Plaintiffs’ response that “all non-privileged documents

responsive to the RFP (Nos. 14 and 15) (see Weiner Declaration Exh. H, Dkt. 43-8, at

4) have been produced” is evasive and non-responsive. See Land Ocean Logistics,

Inc. v. Aqua Gulf Corp., 181 F.R.D. 229, 237-38 (W.D.N.Y. 1998) (conclusory assertion

the requested documents were protected by a privilege are insufficient to satisfy the

requested party’s burden to “supply opposing counsel with sufficient information to

assess the applicability of the privilege without revealing information which is privileged

or protected.” (citing cases)). Accordingly, Plaintiffs shall either supplement Plaintiffs’

responses or provide affidavits describing in reasonable detail what investigations

Plaintiffs undertook to locate responsive documents. See also Grand River Enterprises

Six Nations, Ltd., 2020 WL 7350335, at * 3. Further, the Blumricks shall provide copies

of the completed insurance forms, specifically the Firm Form Loss Questionnaire and

the N.Y. Standard Part II Fire Claim Form, as discussed supra. See Converse, 2023

WL 4489510, at *9.

Sixth, Defendant’s motion requests Plaintiffs to more fully answer Defendants’

Interrogatory No. 10 which requests Plaintiffs describe all packages, materials, personal

property located in the Blumricks’ garage at the time of the fire. See Weiner Declaration

Exh. C, Dkt. 43-3, at 16. Plaintiffs answered Defendant’s Interrogatory No. 10 by stating

Defendant was directed to Plaintiffs’ Answer to Defendant’s Interrogatory No. 1 which

requested Plaintiffs to specify all Plaintiffs’ damages which Plaintiffs allege were caused

by Plaintiffs’ claims. See Weiner Declaration Exh. C, Dkt. 43-3, at 6. Plaintiffs further

responded to Defendant’s Interrogatory No. 10 by directing Defendant to the information

included in Plaintiff New York Central’s claim file and Plaintiffs Blumricks’ uninsured loss

claim file, see Weiner Declaration Exh. C, Dkt. 43-3, at 17, which Plaintiffs produced, in

redacted form, in response to Defendant’s Production Request Nos. 14-15. Id., Exh. D

at 8. However, “such broad responses referencing a party's document production

request without sufficient particularization identifying, with reasonable exactness, which

documents provide the requested answer to the interrogatory, is insufficient under

Fed.R.Civ.P. 33(b)(3)” (“Each interrogatory must, to the extent it is not objected to, be

answered separately and fully.”), Mills v. Steuben Foods, Incorporated, 2023 WL

179579, at *2 (W.D.N.Y. Jan 13, 2023) (plaintiff directed to provide “‘full, specific,

detailed, and complete responses to each of defendant's disputed interrogatories’” and

rejecting plaintiff's “‘strategy’” of directing defendant to allegations in the complaint or to

defendants’ claims files) (italics in original) (quoting Gov’t Employees Ins. Co. v. Strut,

M.D., 2021 WL 230902, at *2 (W.D.N.Y. Jan 22, 2021) (citing Robbins & Myers, Inc. v.

J.M. Huber Corp., 2003 WL 21384304, at *5 n.24 (W.D.N.Y. May 9, 2003) (“[D]irecting

the opposing party to an undifferentiated mass of records is not a suitable response to a

legitimate request for discovery [interrogatories].”) (citing caselaw))); Chinn v. Elmwood

Franklin School, 2018 WL 6738326, at *4 (W.D.N.Y. Nov. 1, 2018) (“answering

interrogatories simply by directing the proponent to rummage through other discovery

materials falls short of the obligations imposed by Rule 33”). Here, Plaintiffs’ reference

to Plaintiffs’ Answers to Defendant’s Interrogatory No. 1 is deficient in that it contains no

listing whatsoever of the items located in the Blumricks’ garage; rather, it describes only

categories of loss such as walls, framing, doors, windows, fencing, deck structures, and

damage to the Murano, along with values associated with such losses. See Weiner

Declaration Exh. C, Dkt. 43-3, at 7-8, 9. Moreover, neither the New York Central claim

file nor the Blumricks’ uninsured loss claim file were provided to the court for its review

by Plaintiffs, thus rendering an evaluation of whether such reference to these files as a

sufficient answer to Defendant’s Interrogatory No. 10, speculative. Based on the

foregoing, Defendant’s motion is GRANTED with regard to Plaintiffs’ failure to properly

answer Interrogatory No. 10.4

Seventh, in Defendant’s Interrogatories Nos. 14 and 15, Defendant requests

Plaintiffs specify the component part of the Murano Plaintiffs claim was defectively

designed and, using technical, scientific, and engineering terminology or words of art

and the defective design of such component in detail, the manner in which Plaintiffs

claim each such component should have been designed, and provide any alternative

designs Plaintiffs claim should have been utilized by Defendant. Weiner Declaration

Exh. C, Dkt. 43-3, at 18. Defendant’s Interrogatory No. 15 requests Plaintiffs provide

the same information as sought by Defendant’s Interrogatory No. 14 with respect to any

Plaintiffs’ claims that the component part identified by Plaintiffs was defectively

manufactured. Weiner Declaration Exh. C, Dkt. 43-3, at 21. Plaintiffs’ answers stated

that the defective components included the Murano ABS actuator pump, circuit board,

4 Attached to Defendant’s Reply, is a copy of Plaintiff Wayne Blumrick’s list of personal property items

lost in the fire. See Dkt. 51-1. However, such listing fails to indicate it represents a complete listing of all

property located in the garage and particularly property which fire investigators reported were stored in

the garage such as flammable liquids (see Weiner Declaration Exh. A, Dkt. 44-7 (Niagara County Fire

Investigation Report)) nor their locations within the garage at the time of the fire. Defendant’s Reply, Dkt.

51, at 11.

coupler, and surrounding bulkhead insulator and seals which allowed ABS brake fluid to

leak on the ABS circuit board causing a fire. Id. at 18. Plaintiffs’ answer to Defendant’s

Interrogatory No. 15 requesting details of Plaintiffs’ manufacturing defect refers to

Plaintiffs’ answer to Interrogatory No. 14. See Weiner Declaration Exh. C, Dkt. 43-3, at

21. Plaintiffs further stated that NHTSA recalls of Defendant’s 2015-2018 Murano’s

because of such defects in the design and manufacturing process of Defendant’s ABS

components, particularly the ABS actuator pump, supported Plaintiffs’ claims given, as

Plaintiffs assert, that the Blumricks’ 2020 Murano had “similar” ABS components. See

Weiner Declaration Exh. C, Dkt. 43-3, at 19; Dkt. 50-2 at 7. Defendant contends

Plaintiffs’ answers to Interrogatories Nos. 14 and 15 are insufficiently responsive.

Defendant’s Memorandum, Dkt. 44, at 22.

Specifically, Defendant argues that Plaintiffs’ answers side-step basic questions

of specifically how the Blumricks’ Murano’s ABS system was defectively designed or

manufactured, relying instead on the fact that the 2015-2018 NHTSA Murano recalls

involving ABS actuator assemblies were similar to the 2020 Murano’s ABS system. Id.

at 22-23; Defendant’s Reply, Dkt. 51, at 13. Plaintiffs’ assertion of similarity between

ABS actuators in the recalled Muranos and the Blumricks’ Murano reinforces the need

for Plaintiffs to answer Defendant’s Interrogatory Nos. 14 and 15 in specific technical

terms explaining the basis for Plaintiffs’ alleged design or manufacturing defect given

that Defendant maintains that the part number in the recalled Murano ABS actuators is

not the same as the part number for the Blumricks’ Murano’s ABS actuator, see

Defendant’s Memorandum, Dkt. 44, at 23 n. 7, a fact unchallenged by Plaintiffs. See

Plaintiffs’ Memorandum, Dkt. 50 (passim). Defendant points out Plaintiffs’ answers fail

to address whether Plaintiffs are asserting the Murano’s actuator pump failed and

caused the fire because it contained a defective oil seal; Plaintiffs’ answers fail to

provide the facts upon which Plaintiffs rely in asserting the actuator pump failed, and

whether Plaintiffs’ claim that the ABS actuator pump in the Blumricks’ Murano was

manufactured in the same lot as those installed in different Nissan vehicles and

recalled. Defendant’s Reply, Dkt. 51, at 13. Plaintiffs’ answers also fail to explain how

the Murano, which was presumably parked in the Blumricks’ garage for some period of

time prior to the fire, could have generated sufficient electrically induced heat in the ABS

circuit board which could have caused a fire if brake fluid had come into contact with the

board, as Plaintiffs allege, while the Murano was parked in the garage. While Plaintiffs

assert the Murano failed to “perform properly” when the Blumricks “operated” the

Murano in a reasonably foreseeable manner, Plaintiffs’ Memorandum, Dkt. 50, at 8, the

record does not indicate the Murano was being operated when the fire started or that

the Blumricks had recently operated the vehicle. Both this court and New York State

courts have held that defendants are entitled to interrogatory answers that sufficiently

detailed in discovery the technical bases for a plaintiff’s claim of negligent design or

manufacture, strict liability and breach of warranty claims. See Brown v. United States,

179 F.R.D. 101, 106 (W.D.N.Y. 1998) (in FTCA action plaintiff was required to answer

fully defendant’s interrogatory requesting plaintiff to identify the “bases” for plaintiff’s

claims of negligence, strict liability, and breach of warranty regarding a plastic injection

mold which injured plaintiff); Nutting v. Ford Motor Company, 593 N.Y.S.2d 111, 112-13

(3d Dept. 1993) (plaintiff required to provide interrogatory answers stating specific

information regarding alleged defects, malfunctions, or improper design of automobile

involved in accident) (citing Wiseman v. American Motors Sales Corp., 475 N.Y.S.2d

885, 886-87 (2d Dept. 1984) (plaintiff’s answers to defendant’s interrogatories failed to

provide sufficient information concerning, inter alia, the nature of the defects in the

alleged component parts of the vehicle involved in plaintiff’s accident)). Accordingly, the

court finds Plaintiffs’ answers to Defendant’s Interrogatories Nos. 14 and 15 are

deficient and Defendant’s motion should be GRANTED as to this issue.

CONCLUSION

Based on the foregoing, Defendant’s motion is GRANTED. Plaintiffs shall

provide supplemental document production and interrogatory answers consistent with

the court’s determination herein within 30 days.

As required by Fed.R.Civ.P. 37(a)(5)(A), Plaintiffs shall show cause not later than

20 days from the date of this Decision and Order why Defendant’s expenses, including

attorneys fees, in connection with Defendant’s motion should not be awarded.

Defendant’s response shall be filed within 10 days; Plaintiffs’ reply shall be filed within

five days thereafter. Oral argument shall be at the court’s discretion.

SO ORDERED.

/s/ Leslie G. Foschio

_________________________________

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE

Dates: September 28, 2023

Buffalo, New York