Opinion
# 2015-015-070 Claim No. 120992 Motion No. M-87059
08-24-2015
TUTOR PERINI CORPORATION f/k/a PERINI CORPORATION v. THE STATE OF NEW YORK
Duane Morris LLP By: Mark A. Canizio, Esq. and Jessica Singh, Esq. Dingess Foster Luciana Davidson & Chleboski LLP By: John R. Dingess, Esq. Honorable Eric T. Schneiderman, Attorney General By: Michael I. Getz, Esquire, Assistant Attorney General
Synopsis
Motion to reargue claimant's prior motion to compel the production of certain documents defendant claimed were privileged was granted.
Case information
| UID: | 2015-015-070 |
| Claimant(s): | TUTOR PERINI CORPORATION f/k/a PERINI CORPORATION |
| Claimant short name: | TUTOR PERINI CORP. |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120992 |
| Motion number(s): | M-87059 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Duane Morris LLP By: Mark A. Canizio, Esq. and Jessica Singh, Esq. Dingess Foster Luciana Davidson & Chleboski LLP By: John R. Dingess, Esq. |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Michael I. Getz, Esquire, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 24, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to reargue claimant's prior motion to compel the production of certain documents which it claimed were privileged.
Following this Court's in camera review of the documents, which were voluminous, the defendant was ordered, with the exception of five specific documents, to provide claimant's counsel with all the documents submitted to the Court for in camera review. The Court found that the document identified in defendant's original and supplemental privilege logs as 25 (i) was exempt from disclosure as material prepared solely for litigation (see CPLR 3101 [d] [2]) and the documents which were identified in its original privilege log as 26 (a), 26 (b), 28 (a) and 28 (f) were protected from disclosure under the attorney-client privilege.
It is well settled that a motion to reargue is addressed to the sound discretion of the Court and requires the moving party to demonstrate that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented (see CPLR 2221 [d] [2]; Peak v Northway Travel Trailers, 260 AD2d 840 [3d Dept 1999]; Spa Realty Assoc. v Springs Assoc., 213 AD2d 781 [3d Dept 1995]). Such a motion does not serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided (Foley v Roche, 68 AD2d 558, 567 [1st Dept 1979], lv denied 56 NY2d 507 [1982]).
Defendant's reargument motion is premised, in part, on the contention that the Court overlooked the fact that, for the same reason the document identified in its privilege log as 25 (i) is privileged from disclosure, so too is the document identified as 19-C(u). Defendant contends that both these documents were prepared at the direction of counsel solely in anticipation of litigation and are therefore exempt from disclosure under CPLR 3101 (d) (2). The Court has reviewed this document and concludes that it is exempt from disclosure as material prepared in anticipation of litigation under CPLR 3101 (d) (2). As a result, this document need not be disclosed.
Likewise, the two proposed redactions on attorney Marie Corrado's notes (defendant's Exhibit E) reflect her mental impressions and may be redacted in the manner proposed (CPLR 3101 [c]; Lichtenberg v Zinn, 243 AD2d 1045, 1048 [3d Dept 1997]).
Accordingly, defendant's motion is granted as indicated.
August 24, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers: Order to show cause dated July 20, 2015; Affirmation of Michael I. Getz dated July 20, 2015 with exhibits A-E; Memorandum of Law of Jessica Singh, Mark Canizio and John R. Dingess date July 27, 2015 with exhibits 1 - 5; Affidavit of Jessica Singh sworn to July 27, 2015.