Lopez v New York City Hous. Auth.

[*1] Lopez v New York City Hous. Auth. 2005 NY Slip Op 50468(U) Decided on March 8, 2005 Supreme Court, Bronx County Roman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 8, 2005
Supreme Court, Bronx County

Victor E. Lopez, Plaintiff(s),

against

THE New York City Housing Authority, Defendant(s). THE NEW YORK CITY HOUSING AUTHORITY, Third-Party Plaintiff(s), IREDEL MIRANDA AND DAVINA LOPEZ, Third-Party Defendant(s). THE NEW YORK CITY HOUSING AUTHORITY, Second Third-Party Plaintiff(s), ARMONDO MIRANDA, Second Third-Party Defendant(s).



42071/04

Nelson S. Roman, J.

Defendant THE NEW YORK CITY HOUSING AUTHORITY (Housing) moves seeking to renew and reargue portions of this Court's prior orders dated November 19, 2004 and December 3, 2004, which, inter alia, denied Housing's cross-motion for a protective order and granted plaintiff's motion compelling the disclosure of certain items of discovery. Housing asserts that reargument is warranted because the Court misapprehended the relevant facts and law when it decided that certain items of discovery were neither attorney work product or materials prepared in anticipation of litigation. Housing asserts that renewal is warranted because the Court did not have compelling [*2]evidence which Housing now submits with the instant motion. Plaintiff opposes the instant motion asserting that the motion to reargue should be denied because the arguments advanced by Housing are the very same arguments the Court already fully considered on the prior motion and as such the Court neither misapplied or misapprehended any of the facts or law. Plaintiff contends that renewal should be denied because the new evidence submitted by Housing is in fact old evidence that Housing could have previously provided, knew about, but nevertheless neglected to provide.

For the reasons that follow hereinafter, Housing's motion, which this Court deems a motion to renew, is hereby granted. Consequently, this Court's prior orders are modified as more fully described below.

This is an action for personal injuries allegedly sustained by Lopez on January 18, 2002, within the premises located at 1139 East 229th Drive North, No.1D, Bronx, New York. It is alleged that a fire ensued thereat and that Lopez sustained burns. It is alleged that the injuries were the result of Housing's failure to provide working smoke detectors.

At issue is the portion of this Court's prior order dated November 19, 2004, which denied Housing's cross-motion for a protective order and instead ordered Housing to produce copies of a report prepared by Trobe Investigations (Trobe) for Housing and a copy of a report prepared by Merone, a housing employee.

When the prior motion was decided, Housing opposed the production of said documents asserting that the Trobe and Merone reports are attorney work product and as such are privileged. The Court, after having read all papers provided decided that Housing's papers were insufficient and did not establish that the reports at issue were attorney work product nor were they materials prepared in anticipation of litigation. This Court, reasoned that Housing had failed to submit sufficient evidence to allow this Court to make a determination of whether the privileges claimed were applicable. Specifically, this Court, in its November 19, 2004 order, stated that

Other than making this conclusory the statement [that the reports are privileged], Housing does not explain the circumstances under which said reports were created, when they were created, how they were created, and generally, what said reports contain. Thus, the Court cannot begin to determine whether said reports are actually attorney work product and thus immune from discovery. The Court cannot conclude that these reports are privileged.

With regard to the prior cross-motion, Housing's only evidence about the reports at issue was the testimony from Glasser, an employee of Housing, who was produced and deposed on September 17, 2003. At his deposition he stated, inter alia, that he had seen and reviewed the Trobe report and a report or statement from Merone in connection to the fire alleged. Other than this testimony the Court had nothing other than a few conclusory statement's from Housing's attorney, who without much articulation or elaborating, asserted that the reports at issue were privileged.

With this new motion, Housing, in support of its contention that the reports at issue are privileged, has provided the Court with a copy of the Trobe report, an affidavit from Steven Martin (Martin), managing attorney at Housing's law firm, an affidavit form Glasser, and two statements from Merone taken by investigators employed by Robert Trobe. A review of the Trobe report indicates [*3]that it was prepared and dated on June 21, 2002. The report chronicles an investigation which was initiated at the request of Housing's counsel. The report contains some conclusions and opinions from the investigator who conducted the investigation. The report is addressed to Housing's law firm and contains handwriting in the margins. The affidavit from Martin states that once Housing is sued and litigation is initiated, it is the custom of Housing through its law firm to retain an investigative service in order to conduct an investigation to prepare for litigation. In this action, Martin asserts that Robert Trobe was hired to conduct an investigation after the litigation was initiated. Martin further states that the Trobe report herein, like all others similarly created are confidential and constitute attorney work product as well as materials prepared in anticipation of litigation. The affidavit from Glasser, states that, contrary to what he testified to at his deposition, presently, he has no recollection of ever reviewing the Trobe report. The statements given by Merone, apparently part of the Trobe report, are dated May 9, 2004 and August 29, 2004.

Renewal

It is well settled that

An application for leave to renew must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made known to the Court. Renewal should be denied where a party fails to offer a valid excuse for not submitting the additional facts upon the original application.

Id. at 568; Louis L. Basset v. Bando Sangsa; 103 AD2d 728 (1st Dept. 1984); In Matter of Rita Holad v. Motor Vehicle Accident Indemnification Corp., 53 Misc 2d 952 (Supreme Court, Kings County 1967); American Trading Company, Inc., v. Leonard Fish, 87 Misc 2d 193 (Supreme Court, New York County 1975); In the matter of Lawrence Kadish v. Gilbert M. Columbo, 121 AD2d 722 (2nd Dept. 1986). Renewal is a remedy to be used sparingly and granted only when there exists a valid excuse for failing to submit the newly proffered facts on the original application. Beiny v. Wynyard, 132 AD2d 190 (1st Dept. 1987). Nevertheless, motions to renew can be granted even when the newly offered evidence was in fact known and available to the movant but never provided to the Court. Tishman Construction Corporation of New York v. City of New York, 280 AD2d 374 (1st Dept, 2001); U.S. Reinsurance Corporation v. Humphreys, 205 AD2d 187 (1st Dept. 1994); Cronwall Equities v. International Links Development Corp., 255 AD2d 354 (2nd Dept. 1998). The Court has held that renewal with new evidence previously known and available to movant is warranted if the interest of justice and substantial substantive fairness so dictate. Id.; Metcalfe v. City of New York, 223 AD2d 410 (1st Dept. 1996); Scott v. Brickhouse, 251 AD2d 397 (2nd Dept. 1998). Courts have even granted renewal based on new evidence not previously submitted when the excuse for not submitting the same was an attorney's belief that it had submitted sufficient evidence to procure the relief requested. J.D. Structures, Inc. v. Waldbum, 282 AD2d 434 (2nd Dept. 2001). In J.D. Structures, Inc. v. Waldbum, the Court granted a renewal of a prior order. The Court had denied said motion because movant had failed to include evidence relative to the debt owed by the respondent. The motion to renew was accompanied by the amount of the debt and an attorney's affirmation averring that the absence of said evidence on the previous motion was due to movant's belief that the motion would be decided favorably without the same. Id. [*4]

Reargument

With respect to a motion for reargument, there are a litany of cases addressing the applicable law. The First Department has stated that A motion for reargument, addressed to the discretion of the Court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principal of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided.

John J. Foley v. Mary Ellen Roche, 68 AD2d 558, 567 (1st Dept. 1979); See also, Fosdick v. Town of Hemstead, 126 NY 651 (1891); William Simpson v. Fred Loehman, 21 NY2d 990 (1968); In Matter of Rita Holad v. Motor Vehicle Accident Indemnification Corp., 53 Misc 2d 952 (Supreme Court, Kings County 1967); American Trading Company, Inc., v. Leonard Fish, 87 Misc 2d 193 (Supreme Court, New York County 1975). A motion for reargument preludes a litigant from advancing new arguments or taking new positions which were not previously raised in the original motion. John J. Foley v. Mary Ellen Roche, 68 AD2d 558, 567 (1st Dept. 1979).

Protective Order

Pursuant to CPLR §3103, the Court can limit or preclude disclosure. CPLR §3103 in pertinent part reads

(a) Prevention of abuse. The court may at anytime on its own initiative, or on motion of any party or any person from whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure devise. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the court.

Thus, by using a protective order, the Court can actually circumscribe the otherwise, liberal scope of discovery. It is within the Court's discretion to regulate the discovery process through the use of protective orders. Church & Dwight Co., Inc., v. UDDO & Associates, Inc., 159 AD2d 275 (1st Dept. 1990).

A motion for a protective Order pursuant to CPLR §3103 can be generally made at any time. However, pursuant to CPLR §3122, a motion for a protective order with respect to discovery demands made pursuant to CPLR §3120 or CPLR §3121 must be made within ten days of receipt of said notice for discovery. Generally, a failure to adhere to the mandates of CPLR §3122 constitutes a waiver and bars a movant from moving for a protective order. Rosa F. Coffey v. Orbachs, Inc., 22 AD2d 317 (1st Dept. 1964). The exception to this general rule arises when the initial discovery demand is palpably improper. 2 Park Avenue Associates v. Cross & Brown Company, 60 AD2d 566 (1st Dept. 1977); Kaye L. Wood v. Sardi's Restaurant Corp., 47 AD2d 870 (1st Dept. 1975); Napoleon Zambelis v. John G. Nicholas, 92 AD2d 936 (2nd Dept. 1983). In that instance, when the demand is palpably improper, failure to timely move for a protective order will not constitute a waiver of movant's right to make such a motion after the statutory time has expired.

Attorney Work Product

CPLR §3101 delineates what is discoverable and what is not. CPLR §3101(c) states, without [*5]qualification, that "[t]he work product of an attorney is not obtainable." Attorney work product consists of "[l]awyers interviews, mental impressions and personal beliefs procured in the course of litigation***." Corcoran v. Peat, Marwick, Mitchell and Company, 151 AD2d 443, 445 (1st Dept. 1989). Statements taken from witnesses if taken to prepare for litigation have been deemed attorney work product. Warren v. New York City Transit Authority, 34 AD2d 749 (1st Dept. 1970). Draft Pleadings, communications, and advise of counsel in connection with pleadings has been deemed attorney work product. John Blair Communications, Inc., v. Reliance Capital Group, L.P., 182 AD2d 578 (1st Dept. 1992). Merely labeling a document "work product" doesn't mean said document is entitled to a privilege. Spectrum Systems International Corporation v. Chemical Bank, 157 AD2d 444 (1st Dept. 1990). Attorney work product is absolutely privileged and completely immune from discovery. Corcoran v. Peat, Marwick, Mitchell and Company, 151 AD2d 445 (1st Dept. 1989); Kandel v. Tocher, 22 AD2d 513 (1st Dept. 1965).

Material Prepared in Anticipation of Litigation

CPLR §3101(d)(2) states that

materials otherwise discoverable under subdivision (a) of this section, [CPLR §3101], and prepared in anticipation of litigation or for trial by or for another party, or by or for that party's representative (including an attorney, consultant, surety, indemnitor, insurer or agent), may be obtained only upon a showing that the party seeking discovery has a substantial need of the materials in preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

Immunity pursuant to this section the CPLR applies only if the material sought was prepared exclusively for litigation. Bombard v. Amica Mutual Insurance Company, 2004 NY Slip Op. 07651 (2nd Dept. 2004). Some cases state that the test is whether the document at issue was prepared primarily if not solely for litigation. Spectrum Systems International Corporation v. Chemical Bank, 157 AD2d 444 (1st Dept. 1990). Reports prepared for different purposes, only one of which is litigation, are not immune from discovery under CPLR 3101§(d)(2). Id.; Mavrikis v. Brooklyn Union Gas Company, 196 AD2d 689 (1st Dept. 1993); Chemical Bank v. National Union Fire Insurance Company of Pittsburgh Pensylvania, 70 AD2d 837 (1st Dept. 1979). Materials prepared in anticipation of litigation are not absolutely immune from discovery, instead, they are conditionally immune. Corcoran v. Peat, Marwick, Mitchell and Company, 151 AD2d 445 (1st Dept. 1989); Kandel v. Tocher, 22 AD2d 513 (1st Dept. 1965). This means that if the person seeking to discover the document at issue can meet the requisites delineated within CPLR §3101(d)(2), said document may be obtained.

The party asserting that the discovery sought is privileged or immune from disclosure bears the burden of establishing that the privilege or immunity applies. Mavrikis v. Brooklyn Union Gas Company, 196 AD2d 689 (1st Dept. 1993); John Blair Communications, Inc., v. Reliance Capital Group, L.P., 182 AD2d 578 (1st Dept. 1992); Bombard v. Amica Mutual Insurance Company, 2004 NY Slip Op. 07651 (2nd Dept. 2004). The proponent of the immunity also bears the burden of demonstrating that said privileged was never waived. John Blair Communications, Inc., v. Reliance Capital Group, L.P., 182 AD2d 578 (1st Dept. 1992). In Mavrikis, the Court held that a conclusory [*6]affidavit from the proponent asserting immunity, which briefly stated that all materials sought were prepared in contemplation of litigation, was insufficient to establish that said documents were privileged. Mavrikis v. Brooklyn Union Gas Company, 196 AD2d 689 (1st Dept. 1993). Generally, a defendant's post accident investigation reports are privileged as both attorney work product and as materials prepared in anticipation of litigation. Carhart v. Relmar Operating Corporation, 66 AD2d 680 (1st Dept. 1978).

Discussion

For reasons that are fully discussed below, the Court hereby grants Housing's motion for renewal and denies its motion for reargument. After reviewing the underlying motion and cross-motion with the benefit of the additional evidence , the Court hereby modifies its prior order to the extent that the Trobe report and any statements given to Trobe by Merone are privileged and not discoverable. Thus, a protective order as to those statements is hereby granted. Even though the motion for a protective order came well over twenty days after the demands were initially made, the demands seek privileged documents. Accordingly, said demands are palpably improper and as such the delay in seeking a protective order does not bar the issuance of the same.

At the outset, the Court notes that this not a motion to reargue. Given the grossly inadequate papers submitted by Housing in support of its original application, the Court properly apprehended the law and applied it to the facts it had before it. Based on that , the Court had to conclude that Housing had not established that the documents at issue were subject to any privilege.

This is a motion to renew which the Court is granting in the interest of justice and substantive fairness. The new evidence, submitted in support of this application, was readily available and known to Housing but never submitted. Thus, the failure to properly substantiate the prior motion was apparently a legal misjudgment by counsel for Housing. Housing alleges, that it felt that the Court, in reading Glasser's testimony would find, without more, that the documents sought were indeed privileged. Galsser's testimony was less than adequate and Housing should have realized the same. However, this Court will allow an attorney's shortcomings to adversely impact the attorney's client. The case law amply supports this Court's decision and as such the motion to renew, based on old, but never previously submitted, evidence is granted.

After having reviewed the Trobe report and the Merone statements, the Court must conclude that they are attorney work product as well as materials prepared in anticipation of litigation. The reports and the statements were created months after the date of the accident herein and well after it became evident that plaintiff would make a claim. Plaintiff filed her notice of claim in this action on April 10, 2002 and the Trobe report is dated June 21, 2002. The Merone statements are dated May 9, 2004 and August 29, 2002. Additionally, the report is addressed to the law firm representing Housing. Martin, through his affidavit, makes it clear that the report and the statements appended thereto, were the result of an investigation precipitated solely in anticipation of litigation. Lastly a review of the documents reveals that the contents of the report and statements are the kind consistent with post-litigation investigation. Thus the documents, being attorney work product, are absolutely privileged and unless there has been a waiver of said privilege, they cannot be discovered. The Court need not address whether said documents are also materials prepared in anticipation of litigation. Suffice it to say that they are materials prepared in anticipation of litigation. Given the plaintiff's access to the scene [*7]of the accident and all the relevant witnesses, the information said documents contain can or at least could and should have been obtained from other sources. Consequently, said documents are privileged and not discoverable as materials prepared in anticipation of litigation

The argument that Housing waived its privilege by showing the Trobe report and Marone statements to Glasser is unavailing. For purposes of this motion, where it is asserted that a privilege to a document was waived because a witness saw it in preparation for his testimony, it must be established that the document in question was in fact reviewed to aid in refreshing a witness' recollection. Herrmann v. General Tire and Rubber Co., Inc., 79 AD2d 955 (1st Dept. 1981); Hannold v. First Baptist Church, 254 AD2d 746 (4th Dept. 1998). In this action, notwithstanding the clearly discrepant information given by Glasser at his deposition and then within the affidavit in support of the instant motion, it has never been established that Glasser reviewed the documents at issue to refresh his recollection. Even crediting his deposition testimony it is apparent that while he had reviewed the documents at issue, it had been so long before he testified, that at his deposition, he couldn't accurately recall the contents of said documents.

While the Court acknowledges that the Trobe report and the Marone statements are privileged. Glasser's testimony at his deposition is rather ambiguous. It is not entirely clear whether Marone made other statements prior to the litigation and in the regular course of his business as a Housing employee. If such statements exist, there is no applicable privilege and said statements should be provided. It is hereby

ORDERED that this Court's prior orders dated November 19, 2004 and December 3, 2004, are hereby modified to the extent of granting a protective order with respect to items one and four of plaintiff's demand for discovery and inspection dated September 18, 2003. The Trobe report and Marone statements are privileged and not discoverable. It is further

ORDERED that if Housing is in possession of any statements or investigation reports made by Marone, not prepared for litigation, but instead prepared in the ordinary course of his business as a Housing employee, said documents must be provided to plaintiff or an affidavit detailing that no such documents exist. He documents or affidavit must be provided within thirty (30) days of receiving a copy of this order with notice of entry. It is further

ORDERED that Housing serve a copy of this order with notice of entry on all parties within ten (10) days hereof.

This constitutes this Court's decision and Order.

Dated: March 8, 2005

Bronx, New York

___________________________

Nelson S. Roman, J.S.C.