Barbash v. Clarke

• Decision Date: 02 October 2019
• Docket Number: Index 601427/2017E
• Citation: 2019 NY Slip Op 34327 (U)
• Court: New York Supreme Court
• Parties: Janet Barbash, Plaintiff, v. Stephen Clarke, individually and d/b/a Greenport Yacht & Shipbuilding Company, Defendants. Stephen Clarke, individually and d/b/a Greenport Yacht & Shipbuilding Company, Defendant/Third-Party Plaintiff, v. Arthur Feld, Third-Party Defendant. Motion Sequence Nos. 004 MD, 005 MD, 006 MD

2019 NY Slip Op 34327(U)

Janet Barbash, Plaintiff,
v.
Stephen Clarke, individually and d/b/a Greenport Yacht & Shipbuilding Company, Defendants.

Stephen Clarke, individually and d/b/a Greenport Yacht & Shipbuilding Company, Defendant/Third-Party Plaintiff,
v.
Arthur Feld, Third-Party Defendant.

Motion Sequence Nos. 004 MD, 005 MD, 006 MD

Index No. 601427/2017E

Supreme Court, Suffolk County

October 2, 2019

Unpublished Opinion

Motion Date: 2/26/19

Motion Date: 3/18/19

Motion Date: 3/20/19

Submitted: 3/20/19

Attorneys [See Rider Annexed]

Attorney for Plaintiff:

John H. Mulvehill, Esq.

Attorney for Defendant/Third-Party Plaintiff Stephen Clarke individually and d/b/a as Greenport Yacht & Shipbuilding Company:

Betancourt, Van Hemmen, Greco & Kenyon, LLP

Attorney for Third-Party Defendant Arthur Feld:

Elliott S. Small, Esq.

HON. WILLIAM B. REBOLINI, J.S.C.

Upon the E-file document list numbered 51 to 98 read on the application of defendant Stephen Clarke, individually and d/b/a Greenport Yacht & Shipbuilding Company for an order vacating the note of issue and compelling plaintiff to provide full responses to defendant's third notice for discovery and inspection dated January 17, 2019 (Motion Sequence 004), on the application by plaintiff Janet Barbash for an order granting her summary judgment on the issue of liability (Motion Sequence 005), and on the application by defendant Stephen Clarke, individually and d/b/a Greenport Yacht & Shipbuilding Company for an order granting him partial summary judgment dismissing plaintiff s complaint and related relief (Motion Sequence 006); it is

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ORDERED that the respective motions (Motion Sequences 004, 005, and 006) are consolidated for purposes of a determination herein; and it is further

ORDERED that the motion by defendant/third-party plaintiff Stephen Clarke, individually and d/b/a Greenport Yacht & Shipbuilding Company for an order vacating the note of issue and compelling plaintiff to respond to discovery is denied; and it is further

ORDERED that motion by plaintiff Janet Barbash for summary judgment in her favor is denied; and it is further

ORDERED that motion by defendant/third-party plaintiff Stephen Clarke, individually and d/b/a Greenport Yacht & Shipbuilding Company for an order granting him summary judgment dismissing the complaint is denied.

Through the filing of a summons and complaint on January 24, 2017, plaintiff Janet Barbash commenced this action seeking money damages for the alleged negligence of defendant /third-party plaintiff Stephen Clarke ("defendant" or "Clarke") d/b/a Greenport Yacht & Shipbuilding Company that resulted in property damages to plaintiffs yacht named "My Way." The complaint alleges that on July 29 2016 employees and/or agents of defendant were working on the plaintiffs yacht when an explosion and fire occurred causing substantial property damage to the yacht. Issue was joined on April 19 2017 by the service of an answer with counterclaims. Plaintiff served her reply to the counterclaims on May 15, 2017. It is not disputed that employees of defendant were performing work on the yacht when the fire began. Defendant asserts a third-party claim against third-party defendant Arthur Feld ("Feld"), the brother-in-law of plaintiff, seeking indemnification. It is alleged by defendant that Feld used and maintained the yacht and requested defendant's employees to pump the yacht's bilges, that Feld did not prevent gasoline from entering the yacht, and that Feld failed to warn defendant and his employees that such gasoline was improperly contained. Defendant also asserts counterclaims against plaintiff seeking payment for the storage of the yacht.

At the compliance conference held on January 16, 2019, the parties entered into a so-ordered stipulation permitting defendant to serve supplemental discovery demands by January 30 2019 to which plaintiff was to provide responses before filing the note of issue. On January 17 2019 counsel for defendant served a third notice for discovery and inspection upon plaintiff which demanded the production of any documents, correspondence, e-mails, text messages, memoranda notes reports, or other documents exchanged between plaintiff and Feld concerning the claims and defenses made in this case. A response to defendant's demands dated January 22, 2019 was served on behalf of plaintiff. The response states, among other things, that plaintiff objects to family conversations or interactions as being irrelevant and immaterial. It also states that plaintiff objects to all documents that are privileged and prepared in anticipation of litigation.

Defendant now moves for an order vacating the note of issue and compelling plaintiff to respond to the third notice for discovery and inspection. Specifically, defendant contends that Feld was provided with correspondence from his counsel, which was then forwarded to plaintiff.

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Defendant further argues that the letter is relevant to this case and that plaintiff has failed to produce same.

Plaintiff opposes the motion, arguing that the letter is protected by the attorney-client privilege and not discoverable. While plaintiff acknowledges that the privilege can be waived when there is a voluntary disclosure to a third person, plaintiff contends that the parties have a common interest and thus, the letter remains privileged. Feld also opposes the motion, arguing that the correspondence constitutes attorney work-product and is not discoverable. Specifically, it is argued that the letter contains an analysis of what Feld's counsel believed would unfold at trial and how that outcome should be taken into consideration when contemplating settlement. Counsel for Feld further argues that the letter is protected by the attorney-client privilege. In support of his motion, Feld submits his own sworn affidavit, wherein he avers that he has never shared the letter from his attorney nor discussed its contents with any third-party.

Plaintiff moves for summary judgment in her favor, arguing that the doctrine of res ipsa loquitur applies in this case and that the yacht was in the exclusive possession and control of defendant. In support of the motion, plaintiff submits copies of the pleadings, transcripts of the parties' deposition testimony, reports from Occupational Safety and Health Administration (OSHA), and a damage loss report of John Lowe.

Defendant cross-moves for summary judgment dismissing the complaint against him and for summary judgment in his favor as to his counterclaim. Defendant also opposes plaintiffs motion for summary judgment. Defendant argues that there is no genuine dispute that a fuel leak caused the subject fire and that he had no duty to plaintiff, as the yacht was merely stored at the yard. In support of the cross motion and in opposition to plaintiffs motion, defendant submits copies of the pleadings, transcripts of the parties' deposition testimony, and affidavits of defendant's employees.

At his examination before trial, defendant testified that he is the owner of Greenport Yacht & Shipbuilding Company and that the subject yacht was being stored at his boatyard at the time of the incident. He testified that third-party defendant winterized the boat and that neither he nor his employees did work on the boat. He testified that third-party defendant said that he would do all the work on the boat and only requested that the boat be hauled to the yard, power-washed, and placed on blocks. He testified that a few days before the incident when Feld asked him to pump water out of the boat, he did not mention that there were gas fumes. He also testified that Feld informed him that the boat cover was off, which he already knew, as it came off within a few weeks of Feld putting it on. Defendant further testified that a few days before the incident, he instructed his employees to pump...