Opinion
Index No. 603482/2009
01-25-2014
PETER GRONTAS and VALENTINA SCHEMBRI, Plaintiffs, v. KENT NORTH ASSOCIATES LLC, et al., Defendants.
DECISION & ORDER
HON. CYNTHIA S. KERN, J.S.C.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for:
| Papers | Numbered |
| Notice of Motion and Affidavits Annexed | 1 |
| Affirmations in Opposition | 2 |
| Replying Affidavits | 3 |
| Exhibits | 4 |
Plaintiffs commenced the instant action seeking both equitably and monetary relief for alleged economic damages they sustained as a result of continued water infiltration into their apartment. Non-party the Board of Managers of the Schaefer Landing 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 retained as an expert by the Board in a related action entitled The Board of Managers of the Schaefer Landing North 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 granted.
The relevant facts are as follows. On July 16, 2005, plaintiffs Peter Grontas and Valentina Shembri purchased a unit in the newly constructed condominium building located at 440 Kent Avenue in the Williamsburg section of Brooklyn, New York (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 caused damage to plaintiffs' personal property. The issue was never resolved and after two years;, on October 1, 2008, plaintiffs vacated the unit and moved to an apartment in Manhattan.
Plaintiffs initiated this action by the filling of a summons and complaint on or about November 16, 2009, asserting allegations of, among other things, design and construction defects, the most significant of which involve water infiltration against several defendants, including the Board. Thereafter, on or about May 21, 2010, the Board, on behalf of the Building's unit owners, commenced the Supreme Kings Action, which 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 on about November 19, 2013, plaintiffs served a subpoena on SGH demanding the production of its expert file relating to 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 after documents are privileged.
New York Law directs that there shall be "full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." CPLR § 3101(a). However, pursuant to CPLR § 3101(d)(2), material otherwise discoverable and that was prepared in anticipation of litigation "may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means." It is well settled that "[s]uch privilege extends to experts retained as consultants to assist in analyzing or preparing the case, 'as an adjunct to the lawyer'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 Santariga v. McCann, 161 A.D.2d 320, 321 (1st Dept 1990)).
In the present case, the Board's motion to quash the Subpoeria is granted as it improperly seeks discovery of materials prepared in anticipation of litigation that is exempt from disclosure. As an initial matter, it is undisputed that the report sought by plaintiff from SGH was prepared in anticipation of litigation to assist the Board in preparing for the Supreme Kings Action. Additionally, plaintiffs have failed to demonstrate a substantial need (for the report and an inability to obtain the substantial equivalent of the report by other means. Plaintiffs attempt to argue that the are unable to obtain the requested disclosure from any independent source. However, this contention is without merit as plaintiffs are free to hire their own expert to conduct an investigation of the Building and the fact that this may cost them time and expense is insufficient in and of itself to demonstrate an undue hardship in obtaining the information.
Additionally, to the extent plaintiffs argue that they are entitled to these documents under the fiduciary exception to attorney-client privilege as articulated in Hoopes v. Carota, 142 A.D.2d 906 (3d Dept 1988), such contention is without merit. Under the fiduciary exception, where a party involved in litigation is in a fiduciary relationship with another person, courts have permitted the other person, upon a showing of good cause, to pierce the attorney-client privilege for communications between counsel and the fiduciary. See Hooped v. Carota, 142 A.D.2d 906 (3d Dept 1988). In the instant action, as an initial matter, this exception 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 such exception applies to attorney work product immunity, the exception is still inapplicable as plaintiffs cannot demonstrate "good cause" for the expert report. As the court stated above, plaintiffs are free to hire their own expert to investigate the Building and the fact that this may cost them extra time or money is insufficient to demonstrate good cause for SGH's report.
Accordingly, the Board's motion to quash the Subpoena is granted and it is hereby
ORDERED that SGH need not, and shall not, produce the material sought in the Subpoena. This constitutes the decision and order of the court.
Enter: __________
J.S.C.