Mutual Redevelopment Houses, Inc. v Skyline Eng'g, L.L.C.

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Mutual Redevelopment Houses, Inc. v Skyline Eng'g, L.L.C. 2018 NY Slip Op 33020(U) November 27, 2018 Supreme Court, New York County Docket Number: 651927/2016 Judge: Marcy Friedman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 11/30/2018 10:50 AM NYSCEF DOC. NO. 188 INDEX NO. 651927/2016 RECEIVED NYSCEF: 11/30/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PA.RT 60 ---------------------------------------------------------------------)( MUTUAL REDEVELOPMENT HOUSES, INC., Plaintiff, lNilEX NO. 651927/2016 l\/IOTION DATl~ -v.l\10TION SEQ. SKYLINE ENGINEERING, LLC. and LAKHANI & JORDAN ENGINEERS, P.C., NO. Defendants. 007 DECISION AND ORDER ---------------------------------------------------------------------}{ SK YLlNE ENGINEERING, LL Co, Third-Party P1aintit1~ -v- RCDOLNER, LLC, LAKHANI & JORDAN ENGINEERS, P.C,, CDM SMITH INC., f/'k!a CAJVIP DRESSER & MCKEE and TURNER & TOVv'NSEND FERZAN ROBBINS LLC, Third-Party Defendants. ---------------------------------------------------------------------)( HON. MARCY S. FRIEDl'vlAN: The foHowing e-filed documents, listed by NYSCEF document number (Motion Seq. No. 007) 166, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 185 were read on this rnotion to PRECLUDE and for SANCTIONS This action arises out of a project to replace HVAC systems in a multi-building residential cooperative knm11in as Mutual Redeve1op1nent Houses, Inc. (Mutual). By four separate motions, third-party defendants moved to dismiss the third-party complaint in its entirety. The court granted the motions to dismiss in a decision on the record 011 November 8, 2018. Argument was also heard on November 8 011 a separate motion by third-party defondant 1 of 4 [*FILED: 2] NEW YORK COUNTY CLERK 11/30/2018 10:50 AM NYSCEF DOC. NO. 188 INDEX NO. 651927/2016 RECEIVED NYSCEF: 11/30/2018 CDM Smith Inc., f/k/a Camp Dresser & McKee (CDM), to compel third-party plaintiff Skyline Engineering, L.LC. (Skyline) to return and/or destroy a "mediation statement" to whichSkyline referred in its opposition to the motions to dismiss. CDM' s motion also requested an order "suppressing the use of this document and a protective order preventing the production of any similarly confidential documents in Skyline's possession." Finally, CDM moved, pursuant to NYCRR 130-1.1, for sanctions against Skyline. The court reserved decision on CDJVI's motion. It is undisputed that the mediation statement was created by CDJ\ 1 for a rnediation in 1 2015 between CDM and Mutual, and that Skyline obtained the mediation statement from Mutual in November 2016 during discovery in the main action, (CDM Memo, In Supp,, at 2; Skyline Memo. In Opp,, at 2, 6.) The document is captioned, in bold type, "For lVlediation Purposes Only," It states that CDM submits the statement "as part of its good faith attempt to amicably resolve this dispute. This statement is made solely for mediation/settlement purposes and shall be at1orded all protections provided under CPLR §454 7 and all other applicable statutes, rules and case law governing such statements." The mediation statement is thus, by its tenns, a settlement document that was not subject AD2d 319, 320 [2d Dept 1997]; ~omnar~ Nineteen Eio:htv.=Nin~J_,U:;:"yJcalm, 96 AD3d 603, 606-607 [1st Dept 2012].) Moreover, Skyline made no showing on the motions to dismiss that the document was material and necessary to Skyline's prosecution of the third-party action. (See 926-927 [2d Dept 2015],) TI1e court accordingly assumes for purposes of this motion that bad 65192712016 MUTUAL REDEVELOPMENT HOUSES, Motion Seq, No, 007 vs. SKYUNE ENGINEERING 2 of 4 Page 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 11/30/2018 10:50 AM NYSCEF DOC. NO. 188 INDEX NO. 651927/2016 RECEIVED NYSCEF: 11/30/2018 CDM made a timely request, CD:M would have been entitied to the retum of the mediation statement and an order preventing disclosure of its contents. CDM has, however,.waived its right to the return of the mediation statement In September 2017, in a prior third-party action betvveen the same parties, Skyline attached the mediation statement as an exhibit to its opposition to CDM's motion to dismiss. (AtT of Kem1eth A. McLellan [Skyline's Atty.] In Opp., Ex. 2 [Index No. 651298/2016, NYSCEF Doc. No. 34].) The motion was withdraw11 and the action was discontinued without prejudice by stipulations dated September 26 and 29, 2017 (Index No. 651298/2016, NYSCEF Doc. Nos. 3940). The instant third-party action was brought in March 2018. CDM did not request the return ofthe mediation statement until June 19, 2018, after it was referenced in Skyline's opposition, dated June 15, 2018, to CDM' s motion to dismiss the instant third-party action. (See Memo. In Supp., at 3; Reply Memo., at 4.) CDM thus waited until nine months after Skyline's initial use of the mediation statement to request its return. Moreover, the document has been publicly accessible on the court e-filing system since September 2017. Under these circumstances, no claim may be made that the document remains confidential. The court notes that the mediation statement did not contain any sensitive information and was not relied on by the court in its November 8, 2018 decision granting the third-party defondants' motion to dismiss. The only referral to the document in Skyline's opposition to the motions to dismiss was the unexceptional one-sentence statement that CDM was the engineering consultant engaged to perform work on the project (Skyline's Memo. In Opp. to Third-Party Defs,' Motions to Dismiss, at 6 [NYSCEF Doc. No. 166].) CDJVl's motion for an order directing return, or precluding use of the mediation statement will be accordingly be denied. CDM's further request for an order preventing the disclosure of 65192712016 MUTUAL REDEVELOPMENT HOUSES, vs, SKYUNE ENGINEERING Motion Seq. No. 007 3 of 4 Page 3 of4 [*FILED: 4] NEW YORK COUNTY CLERK 11/30/2018 10:50 AM NYSCEF DOC. NO. 188 INDEX NO. 651927/2016 RECEIVED NYSCEF: 11/30/2018 any "similarly confidential documents" (see Notice of Motion to Compel) must also be denied. On this record in \.vhich the documents are not identified or described, there is no basis on which the court could determine \Vhether they are protected from disclosure. It is hereby ORDERED that the branch of the motion of CDM Smith Inc., f/k/a Camp Dresser & IvkKee (CDM), for an order directing Skyline to return and/or d.estroy the mediation statement, for an order suppressing the use of this document, and for an order preventing disclosure of similarly confidential documents is denied; and it is further ORDERED that the branch of CDM's motion for sanctions is denied in the discretion of the court and as unwarranted. _,,··:. ,_ ..~·~:.<';} ___:'.~'MARC't'S. .~ ~1~ :1~'.~:'.'.'.~_H~1EDMA.N, :2: : : :z;·1'.:~:·:·:,:J.S.C. ;:'.: ~'. ~:<-~- ~A.:~.:~"~:"."'" "''··· 11127/2018 DATE CHECK ONE: .t . L...~~- r---·1 [J APPLICATION: ! CHECK iF APPROPRIATE: r-----·: CASE DISPOSED GRANTED 0 DENIED NON-FINAL c.·.·.-.J GRANTED IN PART !.........}! SUBMIT ORDER j SETTLE ORDER :~· DIS~-r;~!TiON r·x··-i ~: INCLUDES TRANSFER!REASSIGN L...J FIDUCIARY APPOINTMENT 651927/20Hi MUTUAL REDEVELOPMENT HOUSES, vs. SKYLINE ENGINEERING Motion Seq. 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