East Hampton Union Free School Dist. v Sandpebble
2012 NY Slip Op 30941(U)
April 9, 2012
Sup Ct, Suffolk County
Docket Number: 07-01113
Judge: Thomas F. Whelan
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SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
IAS. PART 33 - SUFFOLK COUNTY
THOMAS F. WHELAN
Justice of the Supreme Court
MOTION DATE 2/24/12
Mot. Seq. # 008- MolO
EAST HAMPTON UNION FREE SCHOOL
- against -
PINKS ARBEIT & NEMETH
Attorneys for Plaintiff
140 Fell Court, Suite 303
Hauppauge, NY 11788
ESSEKS HEFTER & ANGEL
Attorneys for Defendants
108 East Main Street, PO Box 279
Riverhead, NY 11901
SANDPEBBLE BUILDERS INC. and
Upon the following papers numbered 1 to 30
read all this motion to compel discovery
of MOlionl Order to Show Cause and supporting papers
1 - 16
; Notice of Cross Molion and supporting
; Answering Affidavits and supporting papers
17 - 22
; Replying Affidavits and supporting
papers 23 - 28
; Other defendant's memorandum onaw 29 - 30
; (ltlld llltC, helll iug.eotlliseJ ill .~l1pperr1
Imd ()pposed to tile litOlion) it is,
ORDERED that defendants' motion for an order pursuant to CPLR 3]24 compelling the
plaintiff to comply with and respond to the defendants' first demand for discovery and inspection
dated January 23, 2007 and second demand for discovery and inspection dated July 17, 2008 is
determined as set forth below; and it is further
ORDERED that plaintiff is directed to serve the documents for which the Court has found
that the School District has waived the attorney-client privilege, and those documents which do not
fall under lhe work product doctrine within thirty days of service of a copy of this order with notice
of entry; and it is further
E8St Ilmnplon Union Free School District v Sandpcbble Builders
Index Number 07-01 I 13
ORDERED that if plaintiff falls to comply with this order, defendants may move for relief
pursuant to CPLR 3126; and it is further
ORDERED that the parties are directed to appear for a compliance conference in the
chambers of the undersigned on Friday, April 27, 2012 at 9:30 a.m.
In this breach of contract action, plaintiO' East I-lampton Union Free School District
(hereinafter "the School District") seeks, in the [LfStcause of action. ajudgment declaring a written
conrract, dated 1\priI2002, to be void. abandoned and/ofterrninated and unenforceable, in the second
cause of action. ajudgment declaring that defendants, Sand pebble Builders. Inc. and Victor Canscco
(hereinafter "Sandpebblc''). breached the duty of good faith and fair dealing. and in the third cause
of action, damages for defendants' alleged breach of an oral estimating services contract.
The complaint alleges that in April of 2002 Sandpebble entered into a contract with the
School District to perform cerlain construction management services in connection with a proposed
$18 million construction project for renovations and expansions to the school system. The complaint
alleges that the April 2002 contract and the $18 million project were abandoned in late 2004.
Subsequcntly. the School District contemplated a new $90 million project for renovations and
expansions to the schoo! system. On June 21, 2005, a $90 million municipal bond ollering was put
to a vote and rejected by thc voters of the School District. Thereafter, the School District
contemplated a new $80 million renovation project for its school system. In early 2005, it is alleged
that the School Districl requested and Sandpebble agreed to perform certain estimating services in
anticipation of [he $80 million project and the District paid Sandpebblc approximately $200,000.00
to perform under the Estimating Services Contract. The complaint alleges that Sandpebble never
performed the Estimating Services Contract. On March 21. 200o, an $80 million municipal bond
offering was put [0 a vote and approved by the voters ofthe School District. The complaint further
alleges that the parties engaged in negotiations for an agreement (0 have Sand pebble perform
construction management services in connection with the $80 million project, however negotiations
j~li ed. 011 September 19,2006, the School District issued a request for proposals and Imcd another
construction1l13nager. On December 4,2006, the complaint alleges that Sand pebble served a notice
or claim 011 the School District. The instant action was commenced on January 7, 2007.
Subscqucntly. Sundpebblc moved for summary judgment dismissing the complaint and for partial
summary judgment on its first counterclaim against plaintifr.
In determining Sandpebblc's motion I-orsummary judgment. by Order dated May 12, 20 I0
(Pines . .I.).the Cour! granted that branch of Sandpebble's summary judgment mOlion dismissing that
pan of the first cause of action of the complaint which sought a declaration that the April 2002
document is void. Ilowever. the Court found that triable issues or fact remained regarding whcther
the project contcmplatcd by thc 2002 Agreemcm was subscqucntly abandoned and if so. whether
plaintilTproperly terminated thc contract with Sandpebble and denied the remainder of defendants'
East I fampton Union Free School District v Sandpebbk Builders
Index Number 07-01113
motion seeking dismissal of the second and third causes
counterclaim lor breach of contract
f action. as well as defendants'
Upon appeal of the Court's Order. by Order dated Deccmber 20.2011,
Division, Scnmd Department held:
The order is l1lodilied, on the law, by deleting the provision thereof
denying that branch of thc defcndants' motion which was 1'01'
summary judgmcnt dismissing the second cause of action, and
substituting therefor a provision granting that branch of the motion;
as so modi lied. the ordcr is arJirmcd insofar as appealed and
cross-appealed from, without costs or disbursements, and the maHer
is remitted to the Supreme Court, Suffolk County, for further
proceedings on so much of the first cause of action as sought a
judgment declaring that thc plaintilTproperly terminated the contract
in accordance 'with its terms, the third cause of action, and the
counterclaims and, thereafter, for the entry of a judgment, inter alia.
declaring that the contract dated April 2002 is valid and enforceable
and dismissing the second cause of action.
Sandpebble now moves for an order pursuant to CPLR 3124 to compel the School District
to comply with its discovery demands dated January 23, 2007. and July 17,2008. Counsel lor
Sand pebble aftirms that there are six categories of documents which have been withheld from
Sandpebble which are: documents which were either authored by, sent to, or copied to Michael E.
Peters, Esq., documents that were either authored by, or sent to, attorneys with the law 1irm or
Hawkins, Delafield & Wood, documents which appear to be solicitations by the School District for
counsel lor a bond referendum, documents that are identified as privileged but tbe author and
recipicnt are not identilicd. and documents that arc identified in a letter dated April 29, 2010 from
the School District's former counsel.
In support of Its motion, Sandpcbblc contends that its position in this case is that it was hired
by the School District to act as constTuction manager for a project that varied in scope. The School
District considered various projects a" low as $20 million and as high as $120 milhon, but linally
settled on an $80 million project that was approved by the District's voters. Sandpebble asserts that
there never was a discreet $18 million project. Sand pebble further argues that the School District's
reliance on the allorney-clicnt privilege and/or the work product privilege. and the dcficient manner
in which it has responded to other discovcry dcmands. has frustrated Sand pebble 's CflOl1sto obtain
l~lctsthat bear upon the issues ofwhcther the April 2002 contract was tern1illatcd and abandoned and
whcth~r the School District has sustained any damages as a rcsuli of what it claims is the breach of
an oral ~stil11atingservices agreement with Sandpebblc. In addition, Sand pebble claims that the
East !-Iampton Union Free School District v Sand pebble Builders
School DistTict's refusal 10complete document discovery is delaying the scheduling and completion
of depositions. Sandpebblc submits. among other things. its first and second demands fordiscovcry
and inspection. thc School District's responses, copies ofthc School District's privilege logs, and
the personal anidavit by Michael E. Peters, Esq. with attachments.
Sand pebble argucs that, in particular, the 19-page personal aflidavit by Michael E. Petcf.'O.
Esq., submitted to r<liscan issue of fact in opposition to S<lndpebble's motion for sLll11ll1aryjudgment
with rcspcct to abandonment o1'the project, disl.:usses facts [hat were based upon his own personal
knowledge and upon a revicw urlhe file retaincd by the finn while he was ernployed by Morgan
Lewis. the former counsel to the School District. Petcrs states that he worked on the School
District's contemplatcd construction projects for the renovation and expansion of ils f~lcilities Irom
2004 through 2007. and had extensive contact with the School District and its Board, individuals in
the School District's business office and defendant Canseco, the principal of Sandpebble. His
affidavit discloses the details of his negotiations between the School District and Sand pebble.
Sandpebble contends that the affidavit demonstrates that Peters is a central figure in the litigation
by his char2.cteri7.ation of termination letters that he sent to SandpebbJe on April 13.2005. May 20.
2005. and November 11,2005, which led the Supreme Court to determine that there were issues of
fact sullieient to defeat Sandpcbble's motion for summary judgment. Sandpcbble contends that such
testimony demonstrates that the School district is deemed to have impliedly waived the attorncyclient privilege and any related work product privilege that might apply to anything Peters authored
or received pertaining to the alleged termination and abandonment of the April 2002 agreement.
The remainder of the documents which Sand pebble requests are based upon its observation
that the privilege log does not contain sufficient information to be able to determinc whether the
communications werc confidcntial communications made for the purpose of obtaining legal advicc
or services, or whether they contain any underlying factual information that is relevant to the issues
in this case and would not be protected by a privilege, such as, among other things, a description of
the project that is relevant to this case. In addition, Sandpcbble claims that the School District has
refused to disclose doculllents that pertain to the amount or damages that it will be claiming at trial.
In opposition. the School District claims that Sand pebble 's motion to compel is a merit less
attcmpt to eviscerate the School district"s attorney-client/work product privilege by manufactured
discovery disputes which arc four years old. The School District further arguc5that it has not waived
any privileged by the tiling or Michael E. Peters' affidavit. and denies that it has placed any
pnvilcgcd communications at issue in this lawsuit In addition. the School District argues that the
privileged material is 1101required to determine the validity of the School District's claims or
dclcnses nor is such information vital to Sandpebblc. The School Dislrict further states that
extensive discovery has already been provided and all that remains is the material listed in the
East j-Jampton Union Free School District v SandpcbbJe Builders
Index Number 07-01113
In reply, Sand pebble asserts that motion practice and five subsequent appeals have consumed
the five years that have passed since the commencement of this action and none of the parties have
been deposed_ In addition, Sandpebble recalls that plaintifPs counsel did not want to proceed \vith
any discovery until the pending appeals were determined, which did not occur until recently, on
December 20, 2011. With regard to Peters' affidavit, in light of the fact that he interposed himself
as a fact witness for the purpose of defeating Sandpebble's motion for summary judgment, and
because there IS no other documentary support or basis fix the statements that Peters made on behalf
of the School District that there was an $18 million project that had been abandoned are at issue in
this case, Sandpebble is entitled to diselosure of the basis of his personal knowledge, of his
"percipient" knowledge and of his knowledge based upon information and beliefofmatters that he
believes are true. Sand pebble contends that the issue of outstanding document disclosure must be
resolved before it can proceed with any party depositions of the School District.
The burden of establishing that certain documents arc privileged and that the privilege has
not been waived is on the party asserting the privilege (Spectrum S)!s.lntl. Corp. I' Chemical Bank,
78 NY2d 371,377,575 NYS2d 809[1991J; 148 il1agnolia, LLCv Merrimack Milt. Fire fns. Co.,
62 AD3d 486, 487, 878 NYS2d 727 [1st Dept 2009]; Jolm Blair Communications v Reliance
Capital Group, L.P., 182 AD2d 578, 582 NYS2d 720 [1st Dept 1992]). The burden cannol be
satisfied by counsel's eonc!usory assertions of privilege and competent evidence establishing the
privilege must be sel forth by the party asserting the privilege (Claverack Coop. Ins. Co. v. Nielsen,
296 AD2d 789, 745 NYS2d 604 [3d Oept 2002]; Agovino v Taco Bell SOX3, 225 AD2d 569, 639
NYS2d III [2d Dep11996j; Martillo v Kalbachel", 225 AD2d 862, 639 NYS2d 144 [3d DepI1996];
Smith v Ford Foundation, 231 AD2d 456, 647 NYS2d 82 [1st Dep1 1996]). The burden of proving
each element of the privilege rests upon the party asserting it and even if the technical requirements
of the privilege are satisfied, it may, nonetheless, yield in a propcr case where strong public policy
requires disclosure (Ro.\Â·siv Blue Cross & Blue Shield, 73 NY2d 588, 592, 542 NYS2d 5081.1989];
Priest v Helllles!)y, 51 NY2d 62. 68-69, 431 NYS2d 51] ). Whether a particular document
is or is not protected by a privilege is necessarily a fact-specij-ic determination, usually requiring an
in camera review (Spectrum Sys. Jlltl. Corp., supra; Roni v Blue Cross & Blue Shield, supra).
"1 D]ocumenlary communications are not confidential if copies thereof are sent to third parties" (see
/Vetherhy Ltd. v G. V. Trademark b,v!"., 261 AD2d 161,689 NYS2d 488 1-1t Dept 1999]).
Pursuant to CPLR 4503 (a), the client may expressly or impliedly waive the pnvilegc.
Waiver is implied when a clicnt voluntarily testifies to a privileged matter, publicly discloses such
matter, or permits their attorney to testify regarding the matter (Jakohlej(v Cerrato, Sweeney &
Cohn, 97 i\D2d 834, 468 NYS2d 895 [2d Dept 1983]). "A privilege may be impliedly \vaived
vvhere a party makes assertions in the litigatioll or asserts a claim that in fairness requires
examination ofprotectcd communications" (Granite Partners v Bear, Steams & Co., Inc., 184 FRD
49,55,42 Fcd R SeTv 3d 806 rSDNY ] 999]). A waiver may also be found vÂ·,rhcrethe client places
East Hampton Union Free School District v Sand pebble Builders
Index Number (n-011!3
the subject matter orthe privileged communication in issue (Jalwbleffv Cerm/o, Sweeney & Cohn,
An at issue waiver requires that the pal1y asserting privilege:
"places the subject matter of its own privileged communication at
issue in litigation, so that the invasion of the privilege is required to
detennine the validity ofa claim or defense of the party asserting the
privilege. and application of the privilege would deprive the
adversary of vital infomlation" (Deutsche Balik Trust Co. of Ams.
)1 Tri-Links Illv. I'm .â€¢â€¢ 43 AD3d 56, 63. 837 NYS2d
Ilere, the Court finds that the School District has failed to meet its burden of demonstrating
that its communications with counsel are protected by the attorney-client privilege. Moreover,
selective disclosure is not pemlitted as a party may not rely on the protection of the privilege
regarding damaging communications while disclosing other self-serving communications (see
Village Board of Pleasantville v Rattner, J 30 AD2d 654, 515 NYS2d 585 [2d Dept J 987]). Peters'
aftidavit submitted in opposition to Sandpebble's motion for summary judgment represents an
implied waiver of the attomey-client privilege as a matter of law (Jakob/effv Cerrato, Sweeney &
Colrn. SlIpl'Cl). The Court also finds that the School District has placed the subject matter of its
privileged communications at issue inasmuch as the communications between the school district
oflicials and counsel are crucial to learning whether there was, in fact, an $18 million project or an
$80 million pro.iect for which it contracted with Sandpebble to manage, and the issues that follow.
Accordingly, under these circumstances. the Court finds that the privilege has been waived and
disclosure is requircd.
With respect to the qualified privilege of "materials prepared in anticipation of litigation,"
the pany asserting the privilege must first demonstrate that the materials were prepared "excluslvcly
for litigation" (Commerce & Int/us,lm. Co. II. S.H. L(ll~fer Vision World, 225 AD2d 313, 314, 639
NYS2d 8 11st Oert 1996]): see CPLR. 3101 (dJI.2D. Materials prepared I~")f ore than one reason.
and not exclusively for litigation, may subject the materials to disclosure (Commerce & Int/us. hU".
Co. II. S.II. Llll~fer Vi.\Â·iollWorld, supra at 314). !fthe party asserting the privilege has established
that the materials were prepared exclusively for litigation. the party seeking the disclosure may
obtain the disclosure Â·Â·only upon a showing that the party seeking discovery has substantial need of
the materials in the preparation of the case and is unable without undue hardship to obtam the
substantial equivalent of the materials by other means" (CPLR 310 I ldJ[2l). But. if the materials
\VL'.re prepared exclusively for litigation -- that is. the materials were created for mixed purposes
(Commerce & IIll/us. /IIS. Co. II. SoH. Laufer VisiOJl World, supra at 314. citing Mavdkl â€¢â€¢ II.
Brook~'lJIUnioll Gas Co.. 196 AD2d 689. 601 NYS2d 612 r15t Dept 19931) -- then Â§ 3101 (d)(1)
docs not apply and the party seeking the disclosure is "under no obligation to justify disclosure or
Eastl'lamplon Union Free School District v Sandpebble Builders
Index Number 07-01113
!the matcrialsJ with a showing of undue hardship" (Commerce & Indu.~. 111.5. Co. v. S.H. Laufer
Vi.\'iOJl World. supra at 314).
The School District makes no showing in its opposition that any of the documents al issue
were prepared exclusively for litigation.
Initially, the Court noles that the documented
communications betwecn the School District and Martin Geiger, Esq. regarding a bond referendum
for land acquisition. bond authori7..1ltion.and bond financing, documents to and from Hawkins,
Delalleld & Wood, as bond counsel to the School District, and documents related to solicitations by
the School District for counsel for a bond referendum would not have been prepared exclUSively for
litigation and are discovcrable. Therefore. Sandpebble is not required to justify disclosure of these
Finally, the remaining issues, regarding the documents that arc identified as privileged
wherein the author and recipient are not identified, the documents that are identified in a letter dated
April 29, 2010 and not entered in the privilege log. and documents to and from Robert Sapir, Esq.
counsel 10 the School District, arc referred to a conference on April 27, 2012 at 9:30 a.m, in the
chambers of the undersigned,
Counsel for the School District is directed to serve the aforementioned documents, other than
documcnts pcrtaining to the remaining issues, upon counsel for Sand pebble \vithin thirty days or
service of a copy of this order with notice of entry.