Claim Managers Take Note: New York’s Comprehensive Insurance Disclosure Act Places New, Immediate, and Retroactive Disclosure Obligations Under CPLR 3101(f) on Defendants and Defense Counsel

On December 31, 2021, New York Gov. Kathy Hochul signed into law the Comprehensive Insurance Disclosure Act, significantly increasing the disclosure requirements for defendants litigating in New York state court.

The Comprehensive Insurance Disclosure Act amends CPLR 3101(f), which previously allowed plaintiffs in litigation to seek disclosure from defendants as to the existence and contents of any insurance agreement that may be used to satisfy a judgment. Under the newly amended CPLR 3101(f), plaintiffs no longer need to request such information — disclosure is automatic and immediate. Within 60 days of answering a complaint, defendants must disclose to plaintiffs a broad array of “documents and information” concerning the existence and contents of any insurance policies that may be used to satisfy a judgment. This obligation includes all primary, excess, and umbrella policies, complete copies of those policies (including, now, applications for insurance), and the contact information for any persons responsible for adjusting the claim. Defendants must also disclose the amounts available under such policies, whether any lawsuits have reduced or eroded, or may reduce or erode, those policy limits, and whether and in what amount those policy limits have been eroded by attorneys’ fees.

Defendants’ burden to provide plaintiffs with this information does not cease after the initial disclosure. The Comprehensive Insurance Disclosure Act creates an ongoing obligation for defendants to ensure that the information provided remains accurate and complete, and requires defendants to provide updated information to plaintiffs within 30 days of receipt. This ongoing obligation exists during the entire pendency of the litigation and for 60 days after any settlement or final judgment.

Defendants are not the only parties impacted by the Comprehensive Insurance Disclosure Act, either. The act also creates a newly added section, CPLR 3122-b, which requires that the information provided under the revised CPLR 3101(f) be certified by both defendants and defense counsel. The certifications must be in the form of a sworn affidavit or affirmation, state that the information is accurate and complete, and state that reasonable efforts have been undertaken, and will be undertaken, to ensure that the information remains accurate and complete.

Finally, it should be noted that the Comprehensive Insurance Disclosure Act took effect immediately and applies retroactively to all pending actions. Defendants currently in litigation who have not previously provided all of the information required by the revised CPLR 3101(f), and the accompanying certifications required by the newly enacted CPLR 3122-b, must do so by March 1, 2022.