Cioffi v. S.M. Foods, Inc.

• Decision Date: 10 August 2016
• Citation: 36 N.Y.S.3d 475,142 A.D.3d 520,2016 N.Y. Slip Op. 05741
• Parties: Frederick M. CIOFFI, et al., appellants-respondents, v. S.M. FOODS, INC., et al., defendants, Atlanta Foods International, et al., respondents-appellants, Ryder Truck Rental, Inc., respondent (and a third-party action). (Appeal No. 1) Frederick M. Cioffi, et al., appellants, v. S.M. Foods, Inc., et al., respondents, et al., defendants (and a third-party action). (Appeal No. 2).
• Court: New York Supreme Court — Appellate Division

142 A.D.3d 520

36 N.Y.S.3d 475

2016 N.Y. Slip Op. 05741

Frederick M. CIOFFI, et al., appellants-respondents,

v.S.M. FOODS, INC., et al., defendants,Atlanta Foods International, et al., respondents-appellants,Ryder Truck Rental, Inc., respondent

(and a third-party action). (Appeal No. 1)

Frederick M. Cioffi, et al., appellants,

v.S.M. Foods, Inc., et al., respondents, et al., defendants

(and a third-party action). (Appeal No. 2).

Supreme Court, Appellate Division, Second Department, New York.

Aug. 10, 2016.

Grant & Longworth, LLP, Dobbs Ferry, N.Y. (Jonathan Rice and Marie R. Hodukavich of counsel), for appellants-respondents in Appeal No. 1 and appellants in Appeal No. 2.

White, Quinlan & Staley, LLP, Garden City, N.Y. (Terence M. Quinlan of counsel), for respondents-appellants in Appeal No. 1 and respondents Atlanta Foods International, Russell McCall's, Inc., and Doug Jay in Appeal No. 2.

Baxter Smith & Shapiro, P.C., White Plains, N.Y. (Sim R. Shapiro and Kimberley A. Carpenter of counsel), for respondent in Appeal No. 1, respondents S.M. Foods, Inc., and Ryder Truck Rental, Inc., in Appeal No. 2, and defendants GFI Boston, LLC, PLM Trailer Leasing, and Daniel E. Burke in Appeal No. 2.

WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, COLLEEN D. DUFFY, and VALERIE BRATHWAITE NELSON, JJ.

In an action to recover damages for personal injuries, etc., (1) the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated November 7, 2013, as granted those branches of the motion of the defendants Atlanta Foods International, Russell McCall's, Inc., and Doug Jay which were to compel them to provide a supplemental expert witness disclosure and to respond to certain discovery demands, and denied those branches of their cross motion which were to strike the answer of those defendants and of the defendant Ryder Truck Rental, Inc., or, in the alternative, to preclude those defendants from offering certain evidence at trial, and the defendants Atlanta Foods International, Russell McCall's, Inc., and Doug Jay, cross-appeal from so much of the same order as granted that branch of the plaintiffs' cross motion which was to impose sanctions against them to the extent of directing that a negative inference charge be given against them at trial, and (2) the plaintiffs appeal, as limited by their brief, from so much of an order of the same court dated January 22, 2014, as denied those branches of their motion which were to strike the answers of the defendants Atlanta Foods International, Russell McCall's, Inc., Doug Jay, and Ryder Truck Rental, Inc., or, in the alternative, to preclude those defendants and the defendant S.M. Foods, Inc., from offering evidence at trial regarding certain theories of liability.

ORDERED that the order dated November 7, 2013, is affirmed insofar as appealed and cross-appealed from; and it is further,

ORDERED that the order dated January 22, 2014, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendants Atlanta Foods International, Russell McCall's, Inc., and Doug Jay, and the defendants Ryder Truck Rental, Inc., and S.M. Foods, Inc., appearing separately and filing separate briefs, payable by the plaintiffs.

On May 22, 2009, the plaintiff Frederick M. Cioffi (hereinafter the injured plaintiff), a police officer, allegedly was injured while he was conducting a traffic stop on foot when he was struck by a tractor trailer operated by the defendant Daniel E. Burke. The tractor trailer was owned by the defendant Ryder Truck Rental, Inc. (hereinafter Ryder). On September 19, 2008, the tractor trailer had been leased pursuant to a rental agreement to the defendant GFI Boston, LLC (hereinafter GFI), Burke's employer. The injured plaintiff, and his wife suing derivatively, commenced this action against, among others, Ryder, GFI, Burke, and certain of GFI's corporate parents and principals, namely, the defendants Atlanta Foods International, Russell McCall's, Inc., and Doug Jay (hereinafter collectively the Atlanta defendants), to recover damages for personal injuries (see Cioffi v. S.M. Foods, Inc., 129 A.D.3d 888, 10 N.Y.S.3d 620

).

The Atlanta defendants moved, inter alia, to compel the plaintiffs to provide a supplemental expert witness disclosure and to respond to certain discovery demands. The plaintiffs cross-moved, inter alia, to strike the answers of the Atlanta defendants and Ryder or, in the alternative, to preclude those defendants from offering certain evidence at trial, or for other sanctions based upon their alleged failure to comply with disclosure orders and demands. In an order dated November 7, 2013, the Supreme Court granted those branches of the Atlanta defendants' motion which were to compel the plaintiffs to provide a supplemental expert disclosure and other items, and granted that branch of the plaintiffs' cross motion which was to impose sanctions against the Atlanta defendants to the extent of directing that a negative inference charge be given at trial against the Atlanta defendants based upon their destruction of certain electronic data. The court otherwise denied the plaintiffs' cross motion. The plaintiffs appeal and the Atlanta defendants cross-appeal from this order.

The plaintiffs then moved, inter alia, to strike the answers of the Atlanta defendants and Ryder or, in the alternative, to preclude those defendants and the defendant S.M. Foods, Inc. (hereinafter S.M. Foods), from offering certain evidence at trial. In an order dated January 22, 2014, the Supreme Court denied those branches of the plaintiffs' motion. The plaintiffs appeal from this order.

“ ‘[A] trial court is given broad discretion to oversee the discovery process' ” ( Maiorino v. City of New York, 39 A.D.3d 601, 601, 834 N.Y.S.2d 272

, quoting Castillo v. Henry Schein, Inc., 259 A.D.2d 651, 652, 686 N.Y.S.2d 818 ; see

Berkowitz v. 29 Woodmere Blvd. Owners', Inc., 135 A.D.3d 798, 799, 23 N.Y.S.3d 352 ). Thus, “ [t]he supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed” (Berkowitz v. 29 Woodmere Blvd. Owners', Inc., 135 A.D.3d at 799, 23 N.Y.S.3d 352 [internal quotation marks omitted]; see

Gould v. Decolator, 131 A.D.3d 445, 447, 15 N.Y.S.3d 138 ; Ligoure v. City of New York, 128 A.D.3d 1027, 1028, 9 N.Y.S.3d 678 ; Daniels v. City of New York, 117 A.D.3d 981, 986 N.Y.S.2d 516 ). Nevertheless, this Court is “vested with a corresponding power to substitute its own discretion for that of the trial court” (Peculic v. Sawicki, 129 A.D.3d 930, 931, 11 N.Y.S.3d 653 ; see

Andon v. 302–304 Mott St. Assoc., 94 N.Y.2d 740, 745, 709 N.Y.S.2d 873, 731 N.E.2d 589 ; Brady v. Ottaway Newspapers, 63 N.Y.2d 1031, 1032, 484 N.Y.S.2d 798, 473 N.E.2d 1172 ).

Turning first to that branch of the Atlanta defendants' motion which was for additional disclosure in connection with the plaintiffs' expert witness disclosure, a litigant is required to “identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion” (CPLR 3101[d][1][i]

). The CPLR exempts attorney work product from disclosure (see CPLR 3101[c] ; Oakwood Realty Corp. v. HRH Constr. Corp., 51 A.D.3d 747, 749, 858 N.Y.S.2d 677 ). However, “the party asserting the privilege that material sought through discovery was prepared exclusively in anticipation of litigation or constitutes attorney work product bears the burden of demonstrating that the material it seeks to withhold is immune from discovery by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation” (Ural v. Encompass Ins. Co. of Am., 97 A.D.3d 562, 566, 948 N.Y.S.2d 621 [citation omitted] ). Furthermore, “[n]ot every manifestation of a lawyer's labors enjoys the absolute immunity of work product. The exemption should be limited to those materials which are uniquely the product of a lawyer's learning and professional skills, such as materials which reflect his [or her] legal research, analysis, conclusions, legal theory or strategy” (Hoffman v. Ro–San Manor, 73 A.D.2d 207, 211, 425 N.Y.S.2d 619 ; see

Beach v. Touradji Capital Mgt., LP, 99 A.D.3d 167, 170, 949 N.Y.S.2d 666 ; Kinge v. State of New York, 302 A.D.2d 667, 670, 754 N.Y.S.2d 717 ).

Here, the plaintiffs contend that materials obtained by their attorney via requests pursuant to state and federal freedom of information laws are privileged attorney work product. However, this material cannot be characterized as being “uniquely the product of [the plaintiffs' counsel's] learning and professional skills” or as reflecting his “legal research, analysis, conclusions, legal theory or strategy” (Hoffman v. Ro–San Manor, 73 A.D.2d at 211, 425 N.Y.S.2d 619

). Accordingly, the Supreme Court did not improvidently exercise its discretion in granting that branch of the Atlanta defendants' motion which was to compel the plaintiffs to disclose this material.

We turn next to those branches of the plaintiffs' cross motion which were strike the answers of the Atlanta defendants and Ryder or, in the alternative, to preclude those defendants from offering certain evidence at trial. The plaintiffs contended that these defendants' answers should be stricken on the ground that they failed to comply with discovery demands and orders. Pursuant to CPLR 3126

, where a party “refuses to obey an order for disclosure or wilfully fails to disclose information which the...