| JRP Old Riverhead Ltd. v Town of Southampton |
| 2010 NY Slip Op 04549 [73 AD3d 1130] |
| May 25, 2010 |
| Appellate Division, Second Department |
| JRP Old Riverhead Ltd., Appellant, v Town ofSouthampton et al., Respondents. |
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In an action, inter alia, to recover damages for injury to property and for injunctive relief, theplaintiff appeals, as limited by its brief, from stated portions of an order of the Supreme Court,Suffolk County (Gazzillo, J.), dated October 1, 2009, which, among other things, denied thosebranches of its motion which were to compel the defendants to comply with certain discoverydemands.
Ordered that the order is modified, on the facts and in the exercise of discretion, (1) bydeleting the provisions thereof denying those branches of the plaintiff's motion which were tocompel the defendants to comply with discovery demands numbered 3, 4, 5 and 14, andsubstituting therefor provisions granting those branches of the motion, and (2) by deleting theprovisions thereof denying those branches of the plaintiff's motion which were to compel thedefendants to comply with discovery demands numbered 2, 7 and 8; as so modified, the order isaffirmed insofar as appealed from, without costs or disbursements, and the matter is remitted tothe Supreme Court, Suffolk County, for an in camera inspection of documents responsive tothose demands, and thereafter for a new determination of those branches of the plaintiff's motionwhich were to compel the defendants to comply with discovery demands numbered 2, 7 and 8.
The plaintiff alleges that the defendants Town of Southampton and the Superintendent ofHighways (hereinafter together the Town) are liable for flood damage to its real propertybecause of, among other things, the Town's negligent maintenance and repair of certain stormdrains. In 2001 the Town and the plaintiff's attorneys placed a stipulation of settlement on therecord in open court (hereinafter the 2001 stipulation), which required the Town, inter alia, topay the plaintiff the principal sum of $8,500 and to complete work necessary to resolve thedrainage problem by November 30, 2001. The Town subsequently paid the plaintiff the principalsum of $8,500.
In 2003 the Town and the plaintiff's attorneys entered into a second so-ordered stipulation(hereinafter the 2003 stipulation) which, in pertinent part, required the Town to completedrainage repairs by October 1, 2003. In 2005 after the plaintiff moved to hold the Town incontempt of both the 2001 and 2003 stipulations, the Town and the plaintiff's attorneys executeda third stipulation (hereinafter the 2005 [*2]stipulation), pursuantto which the Town was required, among other things, to pay the plaintiff a specified sum toconstruct a recharge basin, and to undertake other enumerated activities to resolve the drainageproblem.
When the Town failed to pay the plaintiff pursuant to the terms of the 2005 stipulation, theplaintiff entered a money judgment against the Town (hereinafter the judgment), which it thenattempted to enforce. In January 2006 the Town, now represented by new counsel, moved tovacate the judgment and, in effect, the 2005 stipulation, the 2003 stipulation, and the equitableportion of the 2001 stipulation. The Town contended that because its former attorney had enteredinto those stipulations without the Town Board's knowledge or approval, they wereunenforceable pursuant to Town Law § 68. In a May 2005 order, the Supreme Courtvacated the judgment and the 2005 stipulation, but found that the 2001 stipulation wasenforceable, inter alia, because the Town had ratified that stipulation through its conduct. TheCourt made no determinations as to the 2003 stipulation.
The parties appealed, and this Court upheld the Supreme Court's determination that the 2001stipulation was valid and enforceable and remitted the matter for a hearing and a newdetermination as to the validity of the 2005 stipulation and the judgment entered thereon (seeJRP Old Riverhead Ltd. v Town of Southampton, 44 AD3d 905 [2007]). This Courtconcluded that disputed issues of fact existed as to whether the Town, by its conduct, had ratifiedor was estopped from denying the validity of the 2003 stipulation, and the extension thereof inthe 2005 stipulation, and stated that at the hearing to be held upon remittal, "the validity of the2003 stipulation and the question of what Town officials knew and when they knew it must beexplored to determine issues of ratification and estoppel" (id. at 910).
In advance of the hearing, the plaintiff served the Town with a demand for discovery andinspection, and subsequently moved, inter alia, to compel the Town to comply with its discoverydemands. The Supreme Court granted those branches of the plaintiff's motion which were tocompel the Town to comply with certain of its numbered discovery demands and denied all otherbranches of the motion. We modify.
"While CPLR 3101 (a) provides for full disclosure of all evidence material and necessary tothe prosecution or defense of an action, unlimited disclosure is not required, and supervision ofdisclosure is generally left to the trial court's broad discretion" (Blagrove v Cox, 294AD2d 526 [2002]; see Palermo Mason Constr. v Aark Holding Corp., 300 AD2d 460[2002]). Here, however, the Supreme Court improvidently exercised its discretion in denyingthose branches of the plaintiff's motion which were to compel the Town to comply withdiscovery demands numbered 2, 3, 4, 5, 7, 8 and 14. Demands 3, 4, 5 and 14 seek disclosure ofmaterial relating to the Town's performance of drainage repairs as contemplated in the 2001,2003, and 2005 stipulations. Demands 2, 7 and 8 seek documents relating to work performed by"Outside Counsel for the Town related to the [instant] action." Such material may be relevant todetermining what Town officials knew and when they knew it, a determination which bears uponthe issues of ratification and estoppel in this action (see JRP Old Riverhead Ltd. v Town ofSouthampton, 44 AD3d at 910). Therefore, such material is properly subject to disclosure(see CPLR 3101 [a]; Kaplan v Herbstein, 175 AD2d 200 [1991]). However, tothe extent that certain material produced pursuant to demands 2, 7 and 8 may be exempt fromdisclosure under the attorney-client or attorney work product privileges, we remit the matter tothe Supreme Court, Suffolk County, for an in camera inspection of documents responsive tothose demands, and thereafter for a new determination of those branches of the plaintiff's motionwhich were to compel the defendants to comply with discovery demands numbered 2, 7 and 8(see CPLR 3101 [b], [c]; 4503 [a] [1]; Leardi v Lutheran Med. Ctr., 67 AD3d651 [2009]; Matter of Rye Police Assn. v City of Rye, 34 AD3d 591 [2006];Srinivasan v City of New York, 276 AD2d 786 [2000]).
The plaintiff's remaining contentions are without merit. Mastro, J.P., Dickerson, Belen andChambers, JJ., concur.