Opinion
No. 52037/2013.
10-02-2015
Elise FISCHER, DDS, Plaintiff, v. Gloria E. POLLACK, South East Construction Group, Inc., Grigg & Davis Engineers, P.C., Steven Secon Architect, P.C., the Travelers Indemnity Company of Connecticut, Andrew Sackett, Andrew Sackett Contracting, Deborah Troy, DDS, P.C., and Bond E. Davis, III, Defendants. Gloria Pollack, Plaintiff, v. Andrew Sackett, Andrew Sackett Contracting, Gary Ederer, Southeast Construction Corp., Bond E. Davis, III, Grigg & Davis Engineers P.C., Deborah Troy, DDS, P.C., and Travelers Casualty Insurance Company of America, Defendants.
Joel H. Robinson, Esq., Robinson & Yablon, P.C., New York, Paul M. Millman, Esq., White Plains, Co–Attorneys for Plaintiff Fischer. John E. Hannum, Esq., Hannum, Feretic, Prendergast & Merlino, LLC, New York, Attorneys for Defendant Pollack. John W. Bieber, Esq., Traub, Liberman, Straus & Shrewsberry, LLP, Hawthorne, Attorneys for Defendant South East Constr. Group, Inc. Kevin J. O'Neill, Esq., Byrne & O'Neill, LLP, New York, Attorneys for Defendants Grigg & Davis Engineers, P.C. and Bond E. Davis, III. James F. O'Brien, Esq., Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, Former Attorneys for Defendants Grigg & Davis Engineers, P.C. Steven R. Goldstein, Esq., Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, Attorneys for Defendant Steven Secon Architect, P.C. Yale Glazer, Esq., Lazare, Potter & Giacovas, LLP, New York, Attorneys for Defendant The Travelers Indemnity Co. of Connecticut. Jamie K. McAleavey, Esq., Morrison Mahoney, LLP, New York, Attorneys for Defendants Andrew Sackett & Deborah Troy, D.D.S., P.C. Richard C. Yeskoo, Esq., Yeskoo, Hogan & Tamlyn, LLP, New York, Attorneys for Plaintiff Gloria Pollack. Robert M. Wolf, Esq., Finazzo, Cossolini, O'Leary, Meola & Hager, New York, Attorneys for Defendant Travelers Insurance Company of America.
Joel H. Robinson, Esq., Robinson & Yablon, P.C., New York, Paul M. Millman, Esq., White Plains, Co–Attorneys for Plaintiff Fischer.
John E. Hannum, Esq., Hannum, Feretic, Prendergast & Merlino, LLC, New York, Attorneys for Defendant Pollack.
John W. Bieber, Esq., Traub, Liberman, Straus & Shrewsberry, LLP, Hawthorne, Attorneys for Defendant South East Constr. Group, Inc.
Kevin J. O'Neill, Esq., Byrne & O'Neill, LLP, New York, Attorneys for Defendants Grigg & Davis Engineers, P.C. and Bond E. Davis, III.
James F. O'Brien, Esq., Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, Former Attorneys for Defendants Grigg & Davis Engineers, P.C.
Steven R. Goldstein, Esq., Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, Attorneys for Defendant Steven Secon Architect, P.C.
Yale Glazer, Esq., Lazare, Potter & Giacovas, LLP, New York, Attorneys for Defendant The Travelers Indemnity Co. of Connecticut.
Jamie K. McAleavey, Esq., Morrison Mahoney, LLP, New York, Attorneys for Defendants Andrew Sackett & Deborah Troy, D.D.S., P.C.
Richard C. Yeskoo, Esq., Yeskoo, Hogan & Tamlyn, LLP, New York, Attorneys for Plaintiff Gloria Pollack.
Robert M. Wolf, Esq., Finazzo, Cossolini, O'Leary, Meola & Hager, New York, Attorneys for Defendant Travelers Insurance Company of America.
JOAN B. LEFKOWITZ, J.
The following papers were read on (1) these motions by defendants Grigg & Davis Engineers, P.C., and Bond E. Davis, III, pursuant to CPLR 3103 and 3124, for orders directing destructive testing of metal and concrete support columns (Motion Sequence No.11 in Index No. 52037/2013, and Motion Sequence # 4 in Index No. 52654/2013); and (2) these motions by plaintiff Elise Fischer, pursuant to CPLR 3103, for protective orders against the same (Motion Sequence # 10 in Index No. 52037/2013, and Motion Sequence # 3 in Index No. 52654/2013):
Also considered on these motions were responsive papers uploaded to NYSCEF in withdrawn applications (Motion Sequence # 4 and # 5) in a related unconsolidated action, Troy v. Travelers Indemnity Co., Index No. 58350/2014.
Motion Sequence # 3: Order to Show Cause, Affirmation in Support (52654/2013)Memorandum of Law in Support McCauley Affirmation in Opposition, Exhs. A–B
Motion Sequence # 4: Order to Show Cause, Affirmation in Support, Exhs. A–B (52654/2013)Yeskoo Memorandum in Opposition
Motion Sequence # 10: Order to Show Cause, Affirmation in Support (52037/2013)Memorandum of Law in Support McCauley Memorandum in Opposition, Exhs. A–B
Motion Sequence # 11 Order to Show Cause, Affirmation in Support, Exh. 1 (52037/2013)McCauley Memorandum in Support Yeskoo Declaration Fischer Memorandum in Opposition, Exhs. 1–5
Upon the foregoing papers and proceedings held on August 17, 2015, and all prior papers and proceedings in these actions, the four motions are consolidated for purposes of decision and are determined as follows:
As most recently enumerated in the Decision and Order of this Court (Lefkowitz, J.) dated March 17, 2015, these actions arise from a partial building collapse that occurred on June 4, 2012, at the premises known as 266 Purchase Street, Rye, New York. On that premises was a three-story commercial office building owned by Gloria Pollack, in which a number of medical and dental offices were tenants. Among those tenants were Elise Fischer, DDS (hereinafter "Fischer"), and Deborah Troy, DDS (hereinafter "Troy"). As plaintiffs allege in their respective complaints, Troy was undertaking certain interior renovations of her dental office based on architectural plans drawn by defendant Steven Secon Architect P.C. (hereinafter "Secon") and implemented by defendants Andrew Sackett (Troy's husband) and Andrew Sackett Contracting (hereinafter collectively "Sackett"), and South East Construction Group, Inc. (hereinafter "South East"). When the Troy renovation work allegedly deflected a support column, Sackett and South East hired defendant Bond E. Davis, III (hereinafter "Davis") and his firm, Griggs & Davis Engineers, P.C. (hereinafter "G & D"), as structural engineers to examine the column. Shortly thereafter, however, the building partially collapsed, which resulted in condemnation of the building, evacuation of building tenants, dislocation of the medical and dental building tenants, and damage to the Fischer and Troy dental practices.
By letter dated July 25, 2012, defendant Travelers Casualty Insurance Company of America (hereinafter "Travelers"), insurance carrier for Fischer's dental practice, denied Fischer's insurance claim for the resulting damage to her practice, on grounds that the column defect that allegedly was the proximate cause of the collapse constituted a pre-existing condition under the operative insurance policy. Alleging damage to her dental practice, on February 15, 2013, Fischer commenced an action under Index Number 52037/2013 (hereinafter "Fischer action") against Pollack, into which action Secon, Sackett, South East, Davis, G & D and Travelers were impleaded. On February 28, 2013, Pollack commenced a separate action under Index Number 52654/2013 (hereinafter "Pollack action") against Sackett, into which action were impleaded the same additional defendants and third-party defendants as in the Fischer action. By Decision and Order dated January 10, 2014, this Court (Giacomo, J.) granted Fischer's CPLR 602(a) motion to consolidate the Fischer and Pollack actions for discovery purposes and for joint trial as to non-insurance coverage issues. Pursuant thereto, those parties entered a Preliminary Conference stipulation on February 11, 2014, then proceeded through substantial documentary discovery and depositions during 2014 and early 2015.
While discovery proceeded in the consolidated Fischer and Pollack actions, on or about May 19, 2014, Troy commenced a separate insurance coverage action against Travelers under Index Number 58350/2014 (hereinafter "Troy action"), into which action Pollack was impleaded and thereafter impleaded Secon, Sackett, South East, Davis and G & D as third-party defendants. After joinder of issue in the Troy action, and after the parties entered into a Preliminary Conference Stipulation dated December 19, 2014, Pollack moved pursuant to CPLR 602(a) to consolidate the Troy action with the Fischer and Pollack actions, and Travelers cross-moved in the Troy action pursuant to CPLR 603 to sever insurance claims from the non-insurance causes of action. Those motions remain pending before this Court (Bellantoni, J.). Thereafter, Troy separately moved pursuant to CPLR 1003 and CPLR 3025(b) to add G & D and Davis as direct defendants in the Troy action and to serve corresponding Amended Complaints as to G & D and Davis. The Troy parties stipulated on June 22, 2015, to adjourn the latter motion, which also remains pending before this Court (Bellantoni, J.).
The instant discovery motions in the Fischer and Pollack actions concern destructive testing of support columns. This matter has been the subject of extensive proceedings before Court Attorney–Referee David Evan Markus, whom this Court (Lefkowitz, J.) appointed pursuant to CPLR 3104 to hear and report in all three actions. Pursuant thereto, by Compliance Conference Order dated May 15, 2015, this Court directed the Fischer and Pollack parties to "negotiate in good faith to stipulate as to a joint protocol" for testing the support columns. After the parties failed to reach such an agreement, this Court entered a further Compliance Conference Order dated June 1, 2015, which ordered the parties to conduct certain enumerated non-destructive testing (e.g . photography, weighing) according to Court-directed protocols specified in such order. The Compliance Conference Order of June 1, 2015, also directed that:
2. Any party seeking destructive testing of the subject column[s] shall serve on all parties, and on the parties in Deborah Troy DDS v. Travelers Indemnity Co. (Index No. 58530/2014), a proposed protocol for such testing on or before June 15, 2015. Any party failing timely to serve such proposed protocol thereby will be deemed to have waived such destructive testing. Determination as to such destructive inspection and testing is reserved.
3. Nothing in this order takes any position on testing of the subject column [s] for purposes of Deborah Troy DDS v. Travelers Indemnity Co. (Index No. 58530/2014).
By letter dated June 9, 2015, counsel for G & D and Davis proposed to Referee Markus protocols for destructive testing of the columns (see e.g. NYSCEF Doc. 350 in the Fischer action, Index No. 52037/2013). The three-page submission proposed, in pertinent part, that LPI, Inc., their expert metallurgist, would transport the columns from the Pollack home in Westchester County, where the columns have been held in the Pollack garage, to an LPI-affiliated testing facility in New York City or to an "independent third-party forensic evidence entity (such as Ferasco in Bound Brook, New Jersey)." At such testing location, the G & D submission proposed the following testing protocol:
• Sectioning and extraction of specimens for testing. Sectioning of metallurgical specimens from the columns using a reciprocating saw or similar saw as feasible, locations for sectioning to be agreed upon by all parties present. Specimens would be conducted "to remove fracture surfaces (if present at the base of the column) and material for tensile test specimens, a compositional analysis specimen, and cross-sectioned metallographic specimens. The material for the tensile test specimens and compositional analysis specimen will be removed from areas near the base of the column that have not deformed in service. Metallographic specimens will be prepared from material removed from both the deformed region and near the base of the column. On at least one of the additional columns, sectioning will be conducted to remove materials for tensile test specimens, compositional analysis specimens, and cross-sectioned metallographic specimens.
• Laboratory testing. Laboratory analysis would be conducted at LPI's facilities in Manhattan and would comprise:
(1) "Visual, stereomicroscopic, and scanning electron microscopic (SEM) examination of the buckled column fracture surfaces (if present). Cleaning of the fracture surfaces may be conducted, as needed, and is expected to include ultrasonic cleaning and nylon-bristle brush cleaning in methanol and/or Alconox solutions to remove corrosion products. In addition, due to size restrictions in the specimen chamber, sectioning of fracture surfaces may be required for SEM examination. If necessary, a dry band saw will be used, with the locations for sectioning agreed upon by all parties present.
(2) "Tensile testing will be conducted on specimens machined from the material removed from the columns. Due to safety issues in the machine shop, outside parties will not be able to witness test specimen machining; however, the test material will be photographically documented as-removed, after machining, and after testing. Tensile testing can be witnessed, if requested. Specimen preparation and testing will be conducted in accordance with ASTM E8/E8M and A370."
(3) "Metallographic analysis will be conducted on cross-sectioned specimens from the material removed from the columns. Specimens will be mounted, ground, and polished by LPI using standard metallographic preparation techniques. The specimens will be examined using optical microscopy in both the as-polished and etched conditions. Micro-hardness indentation testing may be conducted on specimens as needed."
(4) "Compositional analysis will be conducted on specimens from the material removed from the columns. Final preparation of these specimens will be conducted by LPI. This analysis is expected to utilize optical emission spectroscopy (OES) and combustion spectroscopy (CS), as-needed, and will be conducted by an accredited, independent third-party laboratory."
By letter dated June 10, 2015, counsel for Pollack served a letter brief opposing the destructive testing protocols (see e.g. NYSCEF Doc. 351 in the Fischer action, Index No. 52037/2013); a letter brief in opposition by counsel to Fischer followed on June 12, 2015 (see e.g. NYSCEF Doc. 352 in the Fischer action). Pollack's opposition asserted that the destructive testing protocol fails to establish the necessity of such testing under Mattern v. Hornell Brewing Co., Inc. (84 AD3d 1323 [2d Dept 2011] ) and that the protocol is insufficiently specific to pass muster under Mattern. Pollack asserted that the proposed protocol is invalid for ten reasons: (1) no justification to test the column that did not fail; (2) nondisclosure of relationships with LPI; (3) no basis to transport the columns to LPI; (4) failure to identify the testing laboratory; (5) failure to identify the samples to be removed; (6) failure to identify the cost of such testing; (7) failure to specify which parties would obtain the results of any testing; and (8) failure to provide for post-testing return of the columns. Fischer's opposition adopted Pollack's position with regard to the adequacy of the proposed destructive testing protocols, and added two additional arguments: (9) prejudice to Fischer arising from further delay associated with any destructive testing this Court might authorize; and (10) constructive waiver of the demand for destructive testing on account of failure to pursue the same earlier in discovery. After Referee Markus held a further conference on June 17, 2015, to resolve this dispute, a briefing schedule was issued for the parties to bring these respective motions to compel destructive testing or alternatively enter a protective order against the same. This Court heard oral argument on these motions on August 17, 2015, and on such date engaged in extensive colloquy with counsel on the matters presented for decision.
Standard for Destructive Testing
It is axiomatic that parties are entitled to liberal discovery of "all matters material and necessary in the prosecution" of their action (CPLR 3101[a] ), and the determination of what is "material and necessary" is within the sound discretion of the trial court (see e.g. Andon v. 302–304 Mott Assocs., 94 N.Y.2d 740 [2000] ). The phrase "material and necessary" is "interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v. Crowell–Collier Publishing Co., 21 N.Y.2d 403 [1968] ; Foster v. Herbert Clepoy Corp., 74 AD3d 1139 [2d Dept 2010] ). The foregoing standards vest in the trial court broad discretion to supervise discovery and issue such determinations as necessary to vindicate litigant rights and enforce litigant duties arising in the individual case (see Mironer v. City of New York, 79 AD3d 1106, 1108 [2d Dept 2010] ; Auerbach v. Klein, 30 AD3d 451, 452 [2d Dept 2006] ). Where the court determines that the parties have not proceeded with relevant discovery, a typical remedy is a CPLR 3124 order to compel such disclosure. Conversely, where the court determines that a protective order is necessary to "prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts," the court may enter a protective order "denying, limiting, conditioning or regulating the use of any discovery device" (CPLR 3103[a] ).
While the presumptive standard for discovery is "usefulness and reason" (Allen, 21 N.Y.2d at 404 ), our law establishes a more exacting standard for destructive testing. In Castro v. Alden Leeds, Inc. (116 A.D.2d 549 [2d Dept 1986] ), the court narrated:
"Although scientific testing may, in an appropriate case, promote the just determination of legal controversies (Petruk v. South Ferry Realty Co., 2 A.D.2d 553, 536–537 [1st Dept 1956] ), testing which destroys or materially alters the item or sample being tested should be permitted only where the court determines, in the exercise of its discretion, that such testing is required in the interest of justice (see generally 3A Weinstein–Korn–Miller, N.Y. Civ Prac ¶ 3120.25). The party seeking to conduct destructive testing should provide a reasonably specific justification for such testing including, inter alia, the basis for its belief that nondestructive testing is inadequate and that destructive testing is necessary; further, there should be an enumeration and description of the precise tests to be performed, including the extent to which each such test will alter or destroy the item being tested (Di Piano v. Yamaha Motor Corp., 106 A.D.2d 367 [2d Dept 1984] ; see also Empire Mut. Ins. Co. v. Independent Fuel & Oil Co., 37 Misc.2d 905 [Westchester Co Ct 1962] ). The court can then determine whether such testing is appropriate and what safeguards may be required in the testing procedure to protect the interests of all parties."
Thereafter, Burley v. Sears Roebuck & Co. (226 A.D.2d 494 [2d Dept 1996] ) amplified that destructive testing is appropriate where its proponent demonstrates that it is "the only method by which [the proponent] may obtain the information" sought (id. at 494 ). A trial court commits reversible error by authorizing destructive testing absent this heightened showing (see id. ). The most recent binding authority on a movant's entitlement to destructive testing is Mattern, on which all instant disputants extensively rely. Mattern, in turn, relied on Castro and Burley to frame the applicable standard as follows:
"The party seeking to conduct destructive testing should provide a reasonably specific justification for such testing including, inter alia, the basis for its belief that nondestructive testing is inadequate and that destructive testing is necessary; further, there should be an enumeration and description of the precise tests to be performed, including the extent to which each such test will alter or destroy the item being tested" (Castro v. Allen Leeds, Inc., 116 A.D.2d 548, 550 [2d Dept 1986] ; see Schioppa v. Pallotta, 242 A.D.2d 698, 699 [2d Dept 1997] )" Mattern (84 AD3d at 1325 ).
In this most recent explication of the standard for destructive testing, Mattern—like Burley before it—held that the trial court improvidently exercised its discretion to allow destructive testing because its proponent failed to show the extent to which non-destructive testing was inadequate and the extent to which the proposed destructive testing protocol would alter or destroy the physical implement proposed for such testing.
From these principles, it follows that G & D and Davis, as the instant proponents of destructive testing, can prevail only if they (1) demonstrate that destructive testing is material and necessary within the meaning of CPLR 3101(a) ; (2) meet the heightened standard of proffering a specific justification including, inter alia, a basis to conclude that non-destructive testing is inadequate and that destructive testing is necessary within the meaning of Mattern, Castro and Burley; and (3) provide a sufficient enumeration and description of the precise tests to be performed, including the extent to which each such test will alter or destroy the column(s) to be tested.
Procedural and Other Prefatory Matters
Before reaching the merits of the destructive testing application, plaintiffs Fischer and Pollack assert that destructive testing would so prejudice their cases that this Court should decline destructive testing on its face. They argue that destructive testing would materially tamper with one or more columns in ways that would prejudice the finder of fact at trial, and entail substantial delays both in this action and by implication in the unconsolidated Troy action. Especially given that this Court already recognized that discovery in this action has led to delays in trying these actions, they assert that destructive testing would exceed the bounds of reasonable discovery and warrant a CPLR 3103(a) protective order against the same.
As a prefatory matter, this Court rejects plaintiffs' suggestion that the pendency of the unconsolidated Troy action should preclude this Court from reaching the merits of movants' motion for destructive testing. By the terms of the respective Orders to Show Cause bringing on the instant motions, the Troy parties were on notice to such motions, they had opportunity to submit papers on them, and they appeared for oral argument. At oral argument, counsel for Troy indeed did appear and on the record disclaimed this Court's explicit invitation to object to destructive testing in the consolidated actions (see Tr., at 6). To whatever extent Fischer and Pollack may claim prejudice arising from potential delays in the Troy action if this Court authorizes destructive testing in the consolidated actions, such claim is unsupported and, in any event, not a sufficient basis, on the facts and circumstances presented, to preclude reaching the merits of movants' application for destructive testing in the cases at bar.
Neither do plaintiffs persuade the Court that destructive testing would prejudice the finder of fact by altering the columns in the manner that the testing protocols propose. All parties agree that, based on the proposed protocols, destructive testing would involve removal of one three-inch patch of interior metal, a second nine-inch by two-inch patch of exterior metal, and a swatch of interior concrete, on a column whose un-bowed length is fully nine feet. Given this protocol, counsel for Fischer asserted at oral argument that the buckled "column bowed out at least 18 inches, and I think that disrupting the current condition of the column [by means of destructive testing proposed in the protocol] may change its configuration" (Tr., at 24). This argument for prejudice fails for three reasons. First, Fischer offers only speculation that destructive testing would run a substantial risk of further buckling the column: respondents for the destructive testing motions give this Court no basis to believe that the tests proposed run a substantial risk of changing the angle of the buckled column or otherwise altering the visible presentation of the column other than to harvest the two small metal samples. Second, even if destructive testing would substantially risk changing the configuration of the buckled column, Nenadovic v. P.T. Tenants Corp. (84 AD3d 527 [1st Dept 2011] ) weighs against any resulting finding of undue prejudice. In Nenadovic, a personal injury action arising from the alleged failure of a metal scaffold, the trial court denied an application for destructive testing partly on grounds of prejudice. The Appellate Division reversed and rejected the prejudice argument, noting that "[t]here is no dispute that numerous photographs of the scaffold exist which will enable the fact-finder to assess its condition prior to the testing" (Nenadovic, at 527). So too here: ample photographs of the subject columns exist in the record that any party can present to the finder of fact to depict the pre-testing visible presentation of any columns as to which this Court might authorize destructive testing. Third, counsel for G & D and Davis stated that they "stipulate [that] we are the ones that took the patches out of [the columns] for purposes of testing" (Tr., at 19). Plaintiffs offer this Court no reasonable basis to hold that the photographs themselves—or a stipulation or corresponding instruction to a jury—would not suffice to address any legitimate concern that the finder of fact might see the subject columns in visibly altered form consistent with the proposed testing protocols.
This Court also declines plaintiffs' invitation to hold that G & D and Davis waived their entitlement to seek destructive testing. As noted above, they timely raised this issue before Referee Markus, who held a number of conferences on this matter. Given the complexity of these consolidated actions and the irreversibility of destructive testing—which by its nature obliges its proponent to seek more conservative means to adduce discovery before seeking recourse to substantial physical alteration of potential evidence—this Court cannot conclude that movants were dilatory by failing to seek destructive testing prior to the January 2015 deposition of engineer Rollano. At that time, Rollano testified that he had not calculated the tensile strength and load capacity of the subject columns. After that deposition, G & D and Davis asserted, and now plead before this Court, that such engineering variables, and the corresponding internal condition of the subject columns, are critical to their defense. Specifically, they argue, precise determination of column strength would help establish or rebut any of three possible theories of causation for the building collapse now extant in the record:
• The base of the column sustained pre-collapse damage due to groundwater conditions (see G & D Mem in Support, at para. 15 & Exh. B [2012 report by nonparty Tri–State Engineering, P.C. (hereinafter "Tri–State"), which Travelers engaged after the building collapse] ["It is our opinion that the base of the steel column was deteriorated by groundwater conditions and seepage under the slab-on-grade portion of the building. The concrete foundations at the failed column absorbed and held groundwater at the base of the column causing the rust and deterioration of the welded connection. This also deteriorated and weakened the steel at the base of the column"] );
• The column improperly carried excess building load (i.e. the building allegedly was not constructed in conformance with design plans filed with the City of Rye in 1988, and/or was not constructed in accordance with generally accepted construction practice); or
• The column sustained a blunt physical impact related to the collapse but not caused by the column.
Movants assert that discovery tending to establish or rebut these theories of causation would be material to allocating liability among the respective defendants and third party defendants. Accordingly, G & D and Davis conclude, they must be able to determine tensile strength of the subject columns pertinent to defenses arising from those theories of causation. In this regard, they assert that routine engineering calculations of tensile strength and load capacity are insufficient because of the column conditions referenced in Tri–State's engineering report, and only after Rollano's deposition in January 2015 did the necessity of destructive testing to that extent become so apparent to them that the instant motion became necessary.
For purposes of determining whether G & D and Davis constructively waived their right to seek destructive testing by not sooner moving for such relief, this Court need not necessarily accept whether their causation theories or scientific hypotheses might be correct. Neither is it necessarily dispositive that the relevant Tri–State engineering report issued in 2012, before either of the consolidated actions were commenced. Rather, the question at this phase of analysis is whether G & D and Davis, in the totality of the circumstances, were dilatory in seeking this remedy such that this Court, in its discretion, should hold that delay against movants. Based on the foregoing circumstances and especially the conservative approach that destructive testing requires, this Court declines the invitation to find constructive waiver and instead finds that this motion for destructive testing is timely.
Analysis
Turning to the merits of the destructive testing application, this Court accepts movants' threshold demonstration that destructive testing is reasonably calculated to adduce discoverable evidence within the meaning of CPLR 3101(a), and thus that movants satisfy the first prong of the three-prong test for destructive testing. G & D and Davis demonstrated that a measured determination of column tensile strength and load capacity reasonably may tend to establish or rebut one or more of the theories of causation for the building collapse, and thus potentially shift liability among the parties. To the extent that G & D and Davis are entitled to reasonable discovery in relation to their defense, and to seek indemnity and contribution from other parties, they have met the threshold materiality and relevance standard of CPLR 3101(a) for destructive testing.
To be sure, as noted above, this threshold showing is just that—only the initial inquiry, and by its nature far more "liberal" than the second prong of the three-part test for destructive testing. As the trajectory of Mattern, Castro and Burley requires, a movant for destructive testing also must proffer a specific and particularized justification including, inter alia, a basis to conclude that non-destructive testing is inadequate and that destructive testing is necessary. This standard essentially places on movants for destructive testing the burden to show that destructive testing is the only feasible way to obtain discoverable evidence requisite to the prosecution or defense of the action.
In the case at bar, the parties dispute not only the necessity of destructive testing but also the quantum and means of proving such necessity as a matter of law. To that extent, a central plank of plaintiffs' opposition to the destructive testing application is that moving defendants fail to supply an adequate expert affidavit attesting to the "necessity" of destructive testing to adduce measured rather than calculated column load capacity and tensile strength. Plaintiffs offer this Court, however, no authority for the proposition that a sufficient expert affidavit is a firm condition precedent for judicial authorization to conduct destructive testing. To the contrary, in Di Piano v. Yamaha Motor Corp. (106 A.D.2d 367, 368 [2d Dept 1984] ), the Second Department suggested otherwise. While Di Piano denied destructive testing, its denial was without prejudice to the movants for destructive testing thereafter providing the trial court with a list of tests and safeguards sufficient to explicate "the basis for their belief that such testing is necessary. [Respondents would] then have an opportunity to oppose the motion" on the basis of such explicated circumstances, and the court thereafter "may determine within [such] more precise factual context whether such testing is appropriate and what safeguards may be required to protect [all parties'] interests" (id. at 368 ). While courts repeatedly have followed Di Piano in requiring movants for destructive testing to posit a clear "basis" to conclude that non-destructive testing would be inadequate (see e.g. Mattern, 84 AD3d at 1325 ; Castro, 116 A.D.2d at 550 ), no court affirmatively required that a destructive testing movant establish this "basis" only by expert affidavit. Thus, this Court finds no decisional basis on which to accept respondents' argument that movants' application for destructive testing must fail for lacking expert proof of necessity.
Neither does this Court accept respondents' invitation to create such a rule now. Plaintiffs are correct that Mattern, Castro and Burley together require a high standard of proof-but not necessarily the rigid one that they invite this Court to require. As with other aspects of the standard of proof for destructive testing, whether a movant for destructive testing offers a supporting expert affidavit is a factor that a court certainly may and in proper cases should consider in weighing the sufficiency of the application. Our law requires a clear demonstration that destructive testing is the only practicable means for the movant to adduce the material and necessary evidence that destructive testing would seek: our law does not, however, impose any exacting means to make this clear demonstration. Nor, in this Court's judgment, would such a rigid rule serve the policy objectives of Mattern, Castro and Burley, which invite a searching inquiry in which expert affirmations may or may not be relevant or dispositive. Indeed, this Court observes that some courts have allowed destructive testing amidst conflicting expert opinions on point (see e.g. Valenti v. Cablevision, 15 Misc.3d 1133 [Sup Ct Nassau Co 2007] [allowing destructive testing after expert affirmations conflicted on whether cable modem proximately caused house fire] ), while other courts disallowed destructive testing even given a clear expert affidavit as to its necessity (see e.g. Caronna v. Macy's East, Inc., 2000 WL 35938759 [Sup Ct Kings Co 2000] ). These cases suggest that, in proving the necessity of destructive testing within the meaning of Mattern, Castro and Burley, an expert affidavit is not necessarily conclusive or sufficient. Against that backdrop, this Court declines plaintiffs' invitation to impose a rigid rule requiring an expert affidavit as a formalistic requirement of a destructive testing motion, and to reject this destructive testing application for failing to meet that requirement.
Instead, this Court undertakes a broad inquiry of the totality of the record to determine whether G & D and Davis present a sufficient basis to conclude that destructive testing is necessary—that is, whether non-destructive testing (including a calculated rather than measured analysis of the columns) would be inadequate to their defense. In the instant action, G & D and Davis rely on LPI, their expert metallurgist, to proffer a lengthy and detailed scientific protocol for destructive testing. Movants state that given the multiple extant theories of causation for the building collapse, and the expert report by Tri–State potentially supporting one or more of such multiple theories of causation, a measured determination of column tensile strength and load capacity is the only feasible way for G & D and Davis to defend this action by sorting among the various theories of causation. Specifically, G & D and Davis argue that denial of this motion would prejudice their defense to the extent that—as the Tri–State report suggests—one of the subject columns was eroded or corroded by a water condition that might make inapposite a routine calculated determination of column strength and load capacity. For their part, plaintiffs assert that a calculated rather than measured determination of column tensile strength and load capacity ought to be sufficient for G & D and Davis' defense of these actions, but plaintiffs offer this Court no technical justification for that position: as with plaintiffs' assertions that destructive testing could further angle the buckled column or result in delays owing to the unconsolidated Troy action, this further argument is unsubstantiated by anything plaintiffs offer in the record. Given the expert derivation of the proposed protocol, as well as the expert Tri–State report at least partly underlying moving the application for destructive testing and plaintiffs' own lack of technical explication in opposing this application—this Court finds, in the totality of the circumstances, that G & D and Davis established that destructive testing is the only feasible means to obtain reliable quantitative data about column tensile strength and load capacity. This Court further concludes that such data reasonably appear necessary to G & D and Davis' defenses of these consolidated actions. Accordingly, this Court concludes that G & D and Davis met the high standard of Mattern, Castro and Burley to establish the necessity of destructive testing.
Nevertheless, movants for destructive testing may prevail on such an application only by further establishing that the proposed protocol for destructive testing is "sufficient." This third prong requires a destructive testing movant to offer the court "an enumeration and description of the precise tests to be performed, including the extent to which each such test will alter or destroy the item being tested" (Mattern, 84 AD3d at 1325, quoting Castro v. Allen Leeds, Inc., 116 A.D.2d at 550 ; see Schioppa, 242 A.D.2d at 699 ; Di Piano 106 A.D.2d at 367 ). By its nature, this standard vests in the trial court reasonable discretion to consider the technical and other factual circumstances presented, including but not limited to the means and methods proposed for destructive testing, the nature of the item that would be subject to destructive testing, the extent of specificity of the scientific and other protocols, the reasonable potential for ambiguity in those proposed protocols, the relevance of any such potential ambiguity to the quality of proof sought to be procured, and the prospect of prejudice that reasonably may arise from any such potential ambiguity.
G & D and Davis proposed in their letter brief of June 9, 2015, an extensively detailed scientific protocol reasonably calculated to adduce the evidence described above. After plaintiffs opposed those protocols by their own letter briefs before the Court Attorney–Referee, the instant motion practice ensued and G & D and Davis further explicated the protocols in the motion papers; thereafter at oral argument, this Court entertained substantial colloquy concerning the protocols. The explicated protocols and substantial colloquy address plaintiffs' concerns in the letter briefs and, on balance, this Court is satisfied that movants specifically enumerated and described the tests proposed to be performed and the extent to which each such test would alter the columns within the meaning of Mattern and its progeny. The extent of alteration is clear: of a nine foot column, destructive testing would remove one three-inch patch of interior metal, a second patch of metal approximately nine inches by two inches, and a small amount of interior concrete not otherwise visible to the finder of fact. The proposed protocol explicates the technical manner of sectioning and extracting these specimens, and reasonably identifies the parts of the column from which experts would obtain the specimens (i.e. one from the "deformed region" where the column buckled, and another "near the base of the column" that allegedly was subject to a water condition). The proposed protocol lays out that laboratory testing would be conducted at an LPI facility in either New York City or New Jersey. The protocol goes on to specify with precision the kind of stereomicroscopic and scanning electron microscopic analysis to be performed, the nature of how sample surfaces would be cleaned to facilitate testing, how tensile strength testing would be done and by what scientific standards, how metallographic analysis would be performed via optical microscopy, and how compositional analysis would be performed via optical emission spectroscopy and combustion spectroscopy.
Plaintiffs respond inappositely that this proposed protocol does not a protocol make, that moving defendants failed to submit a protocol much less a specific one, and that this application for destructive testing therefore must be denied. Contrary to plaintiffs' characterization of moving defendants' application, the issue is not whether moving defendants submitted a testing protocol—it is beyond cavil that indeed they did submit a protocol—but whether the protocol is specific enough to pass muster. In that light, plaintiffs muster two remaining arguments against the sufficiency of the protocol: the ostensible lack of independence of the testing entities, and the exact location from which test samples from the columns would be taken.
Plaintiffs question whether LPI is sufficiently independent of moving defendants: so far as the argument goes, LPI is moving defendants' metallurgic expert and therefore not sufficiently independent for purposes of the conduct or supervision of destructive testing. Plaintiffs offer this Court no basis—and this Court is unaware of any—to conclude that a movant for destructive testing must contract only with a testing firm or entity with which movants have no relationship, much less an independent third party that would not be called as a witness. G & D and Davis are entitled to retain LPI or other expert metallurgist or testing entity as their expert, no less than plaintiffs are entitled to retain their own experts, and this Court perceives no basis to restrain much less disallow destructive testing on that basis. To whatever extent the independence of the metallurgist or other testing entity may be relevant in this action, any party is entitled to make such arguments concerning the weight of the evidence obtained through destructive testing as may be appropriate to the court at that time.
As to the ostensibly vague description of the location on the columns from which samples would be taken for destructive testing, the protocol makes clear that one sample would be taken from "near the base of the column" and another sample would be taken from "the deformed part" of the column. Plaintiffs offer this Court no basis—and this Court is unaware of any—to more exactly describe the location of the proposed sample site, or why any such ambiguity reasonably may inure to any respondent's prejudice in this action. On a nine-foot column, a rule of reason would appear to suggest that "near the base of the column" where the alleged water condition may have existed, and "the deformed part" of the column that all parties concede buckled, are reasonably specific descriptions to allow this Court—and subsequently, the finder of fact—to determine whether the protocol was followed.
Also arising in opposition to this motion are concerns regarding cost and all parties being able to witness the testing and obtain test results. As to obtaining test results, moving defendants made clear at oral argument that they would not oppose sharing test results with all parties, and this Court perceives no reason that test results potentially relevant to all parties, arising from columns currently in Fischer's possession and control, should be withheld. As to cost, moving defendants made clear at oral argument that they would bear all costs associated with transporting, testing and returning the subject columns. While recognizing that this Court's authorization of destructive testing may encourage if not impel other parties to retain experts to analyze test results, in the broad context of these complex actions, this Court declines plaintiffs' invitation to decline destructive testing on grounds that plaintiffs may incur costs if they elect to retain their own experts.
Plaintiffs also imply that this Court should deny movants' application on grounds that the proposed protocol is ambiguous or inadequate as to who will witness the tests. Respondents' argument is without merit. Under our law, courts first determine whether a proposed protocol for destructive testing is sufficiently justified and particularized, and then determines what additional "safeguards may be required in the testing procedure to protect the interests of all parties" (Castro, 116 A.D.2d at 550 ). Stated otherwise, even the total silence of a proposed destructive testing protocol as to witnessing, videotaping or otherwise recording destructive testing does not defeat the sufficiency of such testing protocol. Indeed, in Burley, the Court conformed a proposed destructive testing protocol to allow the opponent of destructive testing to "have a representative present when the inspection and testing is conducted and to examine, photograph and videotape the [implement subject to testing] before and after each state of testing" (Burley, 226 A.D.2d at 494, citing Dina v. Lutheran Med. Ctr., 156 A.D.2d 421 [2d Dept 1989], Di Giovanni v. Pepsico, Inc., 120 A.D.2d 413 [1st Dept 1986] ). In the instant case, moving defendants' proposed protocol specifically provides for all parties to witness the testing protocol except for "test specimen machining" which, "[d]ue to safety issues in the machine shop, outside parties will not be able to witness." As to this limited element, however, the protocol provides that "the test material will be photographically documented as removed, after machining and after testing." With the further provision that this testing element should be videotaped to the extent not inconsistent with applicable safety standards, the Court deems this protocol acceptable to protect the interests of all parties reasonably to witness and record the testing under Burley.
The one further matter that concerns this Court about the testing protocol is the apparent uncertainty of the laboratory that would undertake optical emission spectroscopy and combustion spectroscopy. The proposed testing protocol provides that this analysis "will be conducted by an accredited independent third-party laboratory" that moving defendants do not identify. While not fatal to moving defendants' application, this Court will not countenance tendering the columns or any samples taken therefrom to an unidentified nonparty. Accordingly, moving defendants must disclose to Court Attorney Referee David Evan Markus, on notice to all parties, the name and location of any independent third-party laboratory that would conduct optical emission spectroscopy and combustion spectroscopy in accordance herewith.
All parties are admonished that this Court will closely supervise the conduct of destructive testing hereunder, and that interference with, delay in or unauthorized enlargement of testing authorized hereunder will not be tolerated. While this Court now grants moving defendants' application for destructive testing, subject to the conditions enumerated below, this Court remains mindful that discovery—intended to advance the conduct of litigation—must not be allowed instead to inhibit that cause. Plaintiffs are entitled to timely trials of these actions, and therefore destructive testing must be conducted expeditiously. Accordingly, it is hereby
ORDERED that the motions by Fischer for protective orders pursuant to CPLR 3103 (Motion Sequence # 10 in Index No. 52037/2013, and Motion Sequence # 3 in Index No. 52654/2013) are denied; and it is further
ORDERED that the motions by defendants Grigg & Davis Engineers, P .C., and Bond E. Davis, III, pursuant to CPLR 3103 and 3124, for orders to authorize destructive testing of one or more metal and concrete support columns (Motion Sequence # 11 in Index No. 52037/2013, and Motion Sequence # 4 in Index No. 52654/2013), are granted to the following extent:
(1) on or before October 23, 2015, moving defendants shall upload to NYSCEF a supplemental designation of each and every third-party laboratory at which optical emission spectroscopy and combustion spectroscopy shall be conducted pursuant hereto, each such laboratory to be located within the State of New York;
(2) on or before November 4, 2015, plaintiff Fischer shall tender to moving defendants control and custody of the column that allegedly buckled and one other column as moving defendants may elect;
(3) moving defendants shall transport such tendered column(s) to such storage, machining and/or testing facilities within the State of New York, consistent with the testing protocol submitted in support of the motions for destructive testing and the supplemental designation required by paragraph one hereof;
(4) destructive testing of such tendered column(s) shall be conducted in accordance with such testing protocol, which shall be strictly construed as to the size, number, location and composition of samples removed from the tendered column(s) for purposes of destructive testing;
(5) for the column that buckled in service, one three-inch patch of interior metal, a second nine-inch by two-inch patch of exterior metal, and a swatch of interior concrete may be removed for destructive testing in the manner provided by the testing protocol, such metal to be taken respectively from near the base of such column or the region thereof that deformed in service;
(6) if moving defendants elect to test a column that did not deform in service, one three-inch patch of interior metal, a second nine-inch by two-inch patch of exterior metal, and a swatch of interior concrete may be removed for destructive testing in the manner provided by the testing protocol, such metal to be taken respectively from near the base of such column or the region thereof most closely corresponding to the part of the column that deformed in service;
(7) other than sampling authorized in paragraphs five and six hereof in conformance with the testing protocol, moving defendants shall not make, or allow any agent, expert or independent third party to make, any other alternation of the tendered column(s);
(8) testing of the tendered column(s) and any samples taken therefrom shall proceed strictly and exclusively in accordance with the testing protocol; provided that if there be any material conflict between the testing protocol and this Order, or any subsequent Order of this Court concerning the same in accordance with paragraph 15 hereof, this Order or such subsequent Order shall govern to the extent necessary to redress such material conflict;
(9) within 48 hours of completion of testing hereunder, moving defendants shall return the tendered column(s) to plaintiff Fischer;
(10) except as otherwise provided herein, moving defendants shall bear all costs of column transportation, testing, storage and observation hereunder;
(11) except as otherwise provided in paragraph 12 hereof, at each stage of transportation, sampling and testing hereunder, moving defendants shall cause their experts or independent third party testing agents to make provision for all parties in these consolidated actions, and in Troy v. Travelers Indemnity Co., Index No. 58350/2014, reasonably to observe and record the same by photographic or videographic means, so long as such observation or recording does not inhibit the transportation, sampling or testing hereunder or risk the safety of any person in accordance with official safety standards applicable hereto;
(12) as to test specimen machining as to which moving defendants assert that it would be unsafe to allow the direct observation required under paragraph 11 hereof, moving defendants shall cause their experts or independent third party testing agents to make reasonable effort—at the expense of moving defendants—to provide capacity for live remote viewing and recording by all parties in these consolidated actions and in Troy v. Travelers Indemnity Co., Index No. 58350/2014, electing to observe and record the same, so long as such observation or recording does not inhibit the test specimen machining or risk the safety of any person in accordance with official safety standards applicable hereto;
(13) the tendered column(s) shall be returned to plaintiff Fischer, not later than December 1, 2015;
(14) moving defendants shall provide to all parties in these consolidated actions and in Troy v. Travelers Indemnity Co., Index No. 58350/2014, without charge, true and complete copies of all testing protocols and test results not later than 10 days after moving defendants shall receive such test results from each testing entity that conducts testing hereunder; provided that moving defendants will make all reasonable efforts to ensure that such test results are transmitted in accordance herewith no later than December 15, 2015; and
(15) the Court Attorney Referee assigned to hear and report in this matter pursuant to CPLR 3104 may recommend to this Court, by further Compliance Conference Order after notice and opportunity to be heard by all parties, any reasonable technical variation from the provisions hereof upon demonstration that such reasonable variation may be necessary or expedient and that such variation would promote the administration of justice; it is further
ORDERED that defendants Grigg & Davis Engineers, P.C., and Bond E. Davis, III, shall cause this Decision and Order, with Notice of Entry thereof, to be served on all parties in these consolidated actions and in Troy v. Travelers Indemnity Co., Index No. 58350/2014, within seven days hereof; and it is further
ORDERED that counsel for all parties in these consolidated actions and in Troy v. Travelers Indemnity Co., Index No. 58350/2014, are directed to appear for a conference in the Compliance Part, Courtroom 800, at 11:00 a.m. on Wednesday, October 28, 2015, at which time the Court Attorney Referee is directed to enforce the provisions of this Order; provided that upon completion of testing hereunder, excepting further discovery rendered necessary by such testing within the meaning of CPLR 3101(a), the Court anticipates that these consolidated actions will be certified for trial.
The foregoing constitutes the Decision and Order of this Court.