Grontas v Kent North Assoc. LLC

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Grontas v Kent North Assoc. LLC 2014 NY Slip Op 30233(U) January 25, 2014 Sup Ct, New York County Docket Number: 603482/2009 Judge: Cynthia S. Kern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNED ON 1/28/2014 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - ,/(£n10 PRESENT: NEW YORK COUNTY PART 5S --- Justice INDEX NO. MOTION DATE -v- As.5oc1~ T..L.5/ ~<< / MOTION SEQ. NO. L-r~<. MOTION CAL. NO. The following papers, numbered 1 to _ _ were read on this motion to/for _ _ _ _ _ __ PAPERS NUMBERED Notice of Motion/ Order to Show Cause Answering Affidavits C/) Affidavits - Exhibits ... Exhibits _ _ _ _ _ _ _ _ _ _ _ _ _ __ Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - - - 2 0 C/) <:( w cc C!J Cross-Motion: D Yes D No Upon the foregoing papers, it is ordered that this motion wz k (.) $: !ii 0 ::> ...J ..., 5 0 I- 0 LL. w :::r: w lo: cc is decided in accordancf';\ cc 0 ~LL. w cc t ~tJ' decision. >- JAN 2 S 20' 4 ::> NEW -.,'ORK ff\cE couNN cl.ER~ o - ...J ...J u.. 1- (.) w c... C/) w cc C/) w C/) c::( z (.) 0 l- o J.S.C. ~ Check one: 0 FINAL DISPOSITION Check if appropriate: 0 'A' DO NOT POST NON-FINAL DISPOSITION 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 55 --------------------------------------------------------------------------}{ PETER GRONTAS and VALENTINA SCHEMBRI, Plaintiffs, Index No. 60348212009 -against- DECISION & ORDER KENT NORTH ASSOCIATES LLC, et al., Defendants. -----------------------------------------------------------------------------}{ HON. CYNTHIA S. KERN, J.S.C. Recitation, as required by CPLR 2219(a), of the papers considered i~ the review of this motion fur: I Papers f I L E IJium+d l Notice o~Mo~ion and ~~davits Annexed.............. j·AN-·2·& ..2044 \ l Affirmations m Opposition........................................................... 2 : Replying Affidavits................................................. .N.EW.Y.QRl( ~ Exhibits.......................................................COUN!Y.CLERK.'S ~ 'l I Plaintiffs commenced the· instant action seeking both equitabl~ and monetary relief for alleged economic damages they sustained as a result of continued wat~r infiltration into their i I apartment. Non-party the Board of Managers of the Schaefer Landin~ North Condominium (the "Board") now moves for an order to quash the subpoena served by plaintiffs to compel document production from Simpson, Gumpetz & Heger ("SGH"), who was retai*ed as an expert by the ; l Board in a related action entitled The Board ofManagers ofthe Schaetr Landing North l Condominium v. Kent North Associates, et al., Index No. 12693/2010 ~the "Supreme Kings Action"). For the reasons set forth below, the Board's motion is grantdd. The relevant facts are as follows. On July 16, 2005, plaintiffs ~ter Grontas and [* 3] , ¢ Valentina Shembri purchased a unit in the newly constructed cond<.lminium building located at 440 Kent A venue in the Williamsburg section of Brooklyn, New Ybrk (the "Building"). Shortly after plaintiffs moved into the unit, they experienced significant and persistent water intrusion and leaks in the living room of the unit during periods of heavy rain;. The leaks and water infiltration created damp, wet and uninhabitable conditions and cau$ed damage to plaintiffs' personal property. The issue was never resolved and after two year~, on October I, 2008, plaintiffs vacated the unit and moved to an apartment in Manhattan.: Plaintiffs initiated this action by the filling of a summons an4 complaint on or about November 16, 2009, asserting allegations of, among other things, de~ign and construction ! i defects, the most significant of which involve water infiltration agai~st several defendants, including the Board. Thereafter, on or about May 21, 2010, the Boa¥, on behalf of the I Building's unit owners, commenced the Supreme Kings Action, whi~h also involves claims of construction defects against several of the same defendants herein. As preparation for that case, ' SGH, an engineering firm, was retained as a consulting expert. On d,r about November 19, i 2013, plaintiffs served a subpoena on SGH demanding the productiotj of its expert file relating to l I its work for the Board in the Supreme Kings Action (the "Subpoena"). The Board brings the \ instant motion to quash the subpoena on the ground that the sought a4er documents are privileged. New York Law directs that there shall be "full disclosure of al\ matter material and necessary in the prosecution or defense of an action, regardless of the ~urden of proof." CPLR § 310l(a). However, pursuant to CPLR § 310l(d)(2), material otherwisi discoverable and that was i prepared in anticipation of litigation "may be obtained only upon a sh~wing that the party 2 [* 4] seeking discovery has substantial need of the materials in the prepafation of the case and is unable without undue hardship to obtain the substantial equivalent cl>f the materials by other means." It is well settled that "[s]uch privilege extends to experts r¢tained as consultants to assist in analyzing or preparing the case, 'as an adjunct to the lawyet's strategic thought processes, thus qualifying for complete exemption from disclosure.·~· Hudson Ins. Co. v. Oppenheim, 72 A.D.3d 489, 490 (1st Dept 2010) (quoting Santarigaiv. McCann, 161 A.D.2d 320, 321 (Pt Dept 1990)). In the present case, the Board's motion to quash the Subpoe9a is granted as it improperly seeks discovery of materials prepared in anticipation of litigation th4 is exempt from disclosure. i As an initial matter, it is undisputed that the report sought by plaintitfr from SGH was prepared in I anticipation of litigation to assist the Board in preparing for the Suprtme Kings Action. Additionally, plaintiffs have failed to demonstrate a substantial need ~or the report and an I inability to obtain the substantial equivalent of the report by other m~ans. Plaintiffs attempt to i argue that the are unable to obtain the requested disclosure from any lndependent source. I \ However, this contention is without merit as plaintiffs are free to hir~ their own expert to conduct an investigation of the Building and the fact that this may cost them time and expense is I insufficient in and of itself to demonstrate an undue hardship in obtai~ing the information. Additionally, to the extent plaintiffs argue that they are entitle~ to these documents under ! the fiduciary exception to attorney-client privilege as articulated in H~opes v. Carota, 142 ! A.D.2d 906 (3d Dept 1988), such contention is without merit. Under ~he fiduciary exception, i I where a party involved in litigation is in a fiduciary relationship with 4t1other person, courts have ! permitted the other person, upon a showing of good cause, to pierce ttje attorney-client privilege ' 3 [* 5] for communications between counsel and the fiduciary. See Hoop~ v. Carota, 142 A.D.2d 906 (3d Dept 1988). In the instant action, as an initial matter, this exce*ion is inapplicable as SGH's report is protected from disclosure as attorney work product and not attorney client privilege and plaintiffs have failed to present any authority extending the fiduciary exception to attorney work product immunity. Additionally, even assuming, arguendo, that suqh exception applies to attorney work product immunity, the exception is still inapplicable~ plaintiffs cannot I demonstrate "good cause" for the expert report. As the court stated ~hove, plaintiffs are free to ! hire their own expert to investigate the Building and the fact that thi~ may cost them extra time or I money is insufficient to demonstrate good cause for SGH's report. \ Accordingly, the Board's motion to quash the Subpoena is g$nted and it is hereby I ORDERED that SGH need not, and shall not, produce the m~terial sought in the Subpoena. This constitutes the decision and order of the court. Enter: ----+i___..e_o/--L.-....-----J.S.C. FILED ·JAN 2 S 2014 Cl! COUNTY CLERK'S OFFt NEW'fORK 4

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