Opinion
11876N Index No. 651426/13, 595360/16, 595394/16, 595225/17, 595322/17, 595414/17, 595639/17 Case No. 2019-4985
09-29-2020
BOARD OF MANAGERS OF 141 FIFTH AVENUE CONDOMINIUM, Plaintiff–Respondent, v. 141 ACQUISITION ASSOCIATES LLC, et al., Defendants. The J Construction Company LLC, Defendant–Appellant, The J Construction Company, LLC, Third–Party Plaintiff–Appellant, v. Cetra–Ruddy Incorporated, et al., Third–Party Defendants–Appellants, Frank A. Seta & Associates LLC, Third–Party Defendant. [And Other Actions]
O'Toole Scrivo, LLC, New York (Steven A. Weiner of counsel), for The J Construction Company, LLC, appellant. Zetlin & DE Chiara LLP, New York (James H. Rowland of counsel), for Cetra–Ruddy Incorporated and John A. Cetra Architecture, LLC, appellants. Arent Fox LLP, New York (Mark A. Bloom of counsel), for respondent.
O'Toole Scrivo, LLC, New York (Steven A. Weiner of counsel), for The J Construction Company, LLC, appellant. Zetlin & DE Chiara LLP, New York (James H. Rowland of counsel), for Cetra–Ruddy Incorporated and John A. Cetra Architecture, LLC, appellants.
Arent Fox LLP, New York (Mark A. Bloom of counsel), for respondent.
Friedman, J.P., Mazzarelli, Kern, Kennedy, JJ.
Order, Supreme Court, New York County (Saliann Scarpulla, J.) entered May 16, 2019, which denied in part the motions by third-party defendants Cetra/Ruddy Incorporated and John A. Cetra Architecture PLLC (collectively, Cetra), and defendant/second third-party plaintiff The J Construction Company LLC (JCON and together with Cetra, appellants) to compel the disclosure of a confidential settlement agreement, unanimously affirmed, without costs.
The motion court providently exercised its discretion in denying unfettered disclosure of the confidential settlement agreement between plaintiff Board of Managers of 141 Fifth Avenue Condominium and the sponsor of the building, defendant 141 Acquisition Associates LLC (the sponsor), and instead permitting disclosure of the portions of the agreement which the court determined were relevant following in camera review ( Mahoney v. Turner Constr. Co. , 61 A.D.3d 101, 104–106, 872 N.Y.S.2d 433 [1st Dept. 2009] ). Upon review, the motion court providently determined that the portions that were relevant to appellants' claims and defenses were 1) the scope of the assignment of the sponsor's claims to plaintiff and 2) whether the agreement contained a cooperation provision. As for appellants' arguments urging disclosure in order to show bias of certain witnesses, appellants failed to connect such bare allegations to anything contained in the settlement agreement that would be "material and necessary" to the litigation of any party's liability or damages ( Matter of New York County Data Entry Worker Prod. Liab. Litig. , 222 A.D.2d 381, 382, 635 N.Y.S.2d 641 [1st Dept. 1995] ). Without more, "any possible use of [the agreement] for purpose of impeachment ... is speculative in the extreme" ( id. [internal quotation marks omitted] ).
We have considered appellants' remaining contentions and find them unavailing.