| Borst v Bovis Lend Lease LMB, Inc. |
| 2013 NY Slip Op 00265 [102 AD3d 519] |
| January 17, 2013 |
| Appellate Division, First Department |
| Michael Borst et al., Appellants, v Bovis LendLease LMB, Inc., et al., Respondents, et al., Defendants. Allen Hay et al., Appellants, vBovis Lend Lease LMB, Inc., et al., Respondents, et al.,Defendants. |
—[*1] Newman Myers Kreines Gross Harris, P.C., New York (Stephen M. Bigham ofcounsel), for respondents.
Orders, Supreme Court, New York County (Barbara Jaffe, J.), entered September 8,2011, which, in these consolidated personal injury actions, denied plaintiffs' motions forsummary judgment as to liability, unanimously affirmed, without costs.
Plaintiffs failed to make a prima facie showing of entitlement to partial summaryjudgment as a matter of law. The non-prosecution agreement entered into between theNew York County District Attorney's Office (NYDA) and the Bovis defendants (Bovis)following NYDA's criminal investigation of the August 18, 2007 fire at the DeutscheBuilding in lower Manhattan, was correctly deemed inadmissible as proof of liability.The agreement explicitly provided that Bovis had not admitted liability, that the factualstatements contained in the agreement were relevant only for the purposes of thecompromise between the NYDA and Bovis, and that Bovis could contradict and/orcontest any factual statement in the agreement in a subsequent action or proceeding towhich the NYDA was not a party (see e.g. Kollmer v Slater Elec., 122 AD2d117, 120 [2d Dept 1986]).[*2]
Judicial estoppel, and even informal judicialestoppel, cannot be applied here. Bovis was not a party to a legal proceeding when itentered into the non-prosecution agreement (see generally Ferring v Merrill Lynch &Co., 244 AD2d 204 [1st Dept 1997]), and the agreement and related documentsamount to a pre-indictment settlement agreement that was neither judicially endorsed norapproved (see Douglas vDashevsky, 62 AD3d 937, 938 [2d Dept 2009]; Matter of Costantino, 67 AD3d1412, 1413 [4th Dept 2009]). Concur—Mazzarelli, J.P., Andrias, DeGrasse,Richter and Clark, JJ. [Prior Case History: 2011 NY Slip Op 32087(U).]