Sea Crest Const. Corp. v. Stubing

• Decision Date: 31 August 1981
• Citation: 442 N.Y.S.2d 130,82 A.D.2d 546
• Parties: In the Matter of SEA CREST CONSTRUCTION CORP., Petitioner-Respondent-Appellant, v. H. D. STUBING, as Commissioner of Public Works of the Town of North Hempstead et al., Respondents-Appellants-Respondents; Leonard S. Wegman Co., Inc., intervening Respondent-Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 130

442 N.Y.S.2d 130

82 A.D.2d 546

In the Matter of SEA CREST CONSTRUCTION CORP.,

Petitioner-Respondent-Appellant, v. H. D. STUBING, as Commissioner of Public Works of the Town

of North Hempstead et al.,

Respondents-Appellants-Respondents;

Leonard S. Wegman Co., Inc., intervening

Respondent-Appellant-Respondent.

Supreme Court, Appellate Division,

Second Department.

Aug. 31, 1981.

Joseph A. Guarino, Town Atty., Manhasset (Howard M. Sinnott, II, pro se, of counsel), for respondents-appellants-respondents.

Doran, Buckley, Kremer, O'Reilly & Pieper, Mineola (James G. Marsh, Mineola, of counsel), for intervening respondent-appellant-respondent.

McDonough, Marcus, Cohn & Tretter, P. C., New York City (Alan Levy, New York City, of counsel), for petitioner-respondent-appellant.

Before HOPKINS, J. P., and MANGANO, MARGETT and THOMPSON, JJ.

MANGANO, Justice.

Petitioner commenced this CPLR article 78 proceeding to compel disclosure of certain records maintained by the Commissioner of Public Works of the Town of North Hempstead (hereinafter the town), pursuant to the New York Freedom of Information Law (Public Officers Law, art. 6). Petitioner seeks access to all correspondence between the town and its architects and engineers, specifically Leonard S. Wegman Co., Inc. (hereinafter Wegman) in connection with the town's public improvement project known as the Seven Point Program.

Pursuant to a contract entered into between the town and Wegman on April 10, 1973, the latter was designated a "consultant", and was to serve as "the Town's professional representative in the planning and professional inspection of the construction of the Project and give consultation and advice to the Town during the performance of its services". Wegman's duties included preparing preliminary engineering studies, reports and plans, making periodic visits to the site to observe work in progress, providing reports to the town, keeping the town informed of any delays in construction and the reasons therefor, disapproving the work of those contractors failing to conform to specifications, reviewing contractors' applications for payment and recommending approval of payment to the contractors. Petitioners, Sea Crest Construction Corp., was subsequently granted a contract by the town to perform work on the project as a general contractor.

In July, 1979 petitioner served a demand on the town, pursuant to the Freedom of Information Law, requesting, inter alia, examination of "between the Town of North Hempstead and the architects and engineers of the subject project." Access to those materials was denied by the records access officer for the department of public works on the ground that such correspondence was confidential in nature. Petitioner appealed the determination to the Town Attorney, who affirmed the denial on the grounds that it was material prepared for possible litigation and that it was confidential material. The instant CPLR article 78 proceeding was commenced in September of 1979. In response to the petition, the town and Wegman (which simultaneously made a motion for leave to intervene) argued against disclosure asserting, inter alia, that the materials sought were prepared for litigation and, as such, were exempt from disclosure under section 87 (subd. 2, par. of the Public Officers Law and CPLR 3101 (subd. They also maintained that the correspondence was intra-agency material, and thus exempt under section 87 (subd. 2, par. of the Public Officers Law. Special Term disposed of the second issue by stating that Wegman did not fall within the definition of "agency" as it is set forth in section 86 (subd. 3) of the Public Officers Law. However, it recognized that some of the documents might be exempt as material prepared for litigation. As such, the court ordered production of the materials for an in camera inspection to determine which were exempt under section 87 (subd. 2, par. of the Public Officers Law as read in conjunction with CPLR 3101 (subd. Upon such inspection, the court concluded that eight documents, plus one letter annexed to one document, were immune from discovery. The court ordered disclosure of the remaining documents, and in addition granted Wegman's motion for leave to intervene.

The town and Wegman now appeal from so much of the judgment as ordered production of the documents. Petitioner cross-appeals from so much of the judgment as found the eight documents and one letter to be immune. Initially we find that Special Term's determination regarding the materials prepared for litigation was proper, and as such, those materials deemed immune under that exemption are not discoverable (see Matter of Westchester Rockland...