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