ACCADIA SITE CONTRACTING INC v. TOWN OF ORCHARD PARK (2020)

This action arises out of Plaintiff, Accadia Site Contracting, Inc.'s (“Accadia”), claim that Defendant, Town of Orchard Park, New York (the “Town”), unjustly terminated the parties' construction contract (the “Contract”) relating to a multi-million dollar road reconstruction project on Burton Drive in the Town of Orchard Park (the “Project”).

The Town has applied, pursuant to CPLR Rule 3124 and § 3126 for, inter alia, a conditional order dismissing this action, unless Accadia complies with certain outstanding written discovery demands and produces Paul Marinaccio, Accadia's principal, for an additional deposition; a conditional order precluding Accadia's use of certain photographs at trial unless Accadia produces them (the “Disputed Photographs”); an order compelling Accadia to produce its bid submissions from 2018 and 2019; and a protective order staying the deposition of Wayne Bieler, the Town Engineer for the Town. Accadia has cross-moved, pursuant to CPLR 3124 and 3103(1), for, inter alia, an order compelling the depositions of Mr. Bieler and other representatives of the Town and for a protective order.

BACKGROUND

As demonstrated by the following excerpts from the Complaint, Accadia has contended, since the commencement of the action, that the Town's termination of the Contract was pretextual:

As a result of the Town engineer's repeated and uncorrected failures to meet his professional obligations with respect to the Project, the Town improperly shut down the Project, interfered with Accadia's performance, and prohibited Accadia from accessing the job site, resulting in Accadia incurring losses and damages ․ (NYSCEF Doc. No. 2, ¶9).

The Town's apparent reason for halting the Project without notice is that the Town requires additional time and opportunity to re-engineer the Project, correct its engineering errors and omissions, and hire an outside engineer who is competent in road reconstruction projects to re-draft and re-issue the plans and specifications for the Project (Id., at ¶59).

The Town's agents and employees maliciously made false statements that Accadia engaged in serious violations of construction and site safety standards (Id., at ¶85).

The Town's agents and employees maliciously made false statements about the quality of Accadia's work, the performance of Accadia's work, and Accadia's construction site management (Id., at ¶86).

The Town's agents and employees maliciously made false statements that Accadia caused numerous material breaches of the Contract ․ (Id., at ¶88).

During his December 4, 2020 deposition, Mr. Marinaccio testified that he was in contact with a Town employee who informed him that the Town Engineering Department (the “Engineering Department”) falsified inspection records. Specifically, Mr. Marinaccio testified, as follows:

Q. So you're saying you think he made this up after the fact?

A. Okay. In a nutshell, let me tell you what really happened, okay. An inspector that works for the Town of Orchard Park, I've known that guy for thirty years, he came up to me after Mr. Bieler threw me off the job and said to me that Mr. Bieler instructed Jordan to go and write all these reports and lie, okay. So I know whatever he put in writing, it's all a lie because he didn't have one of these reports done by the time Mr. Bieler threw me off the job, not one. It was all in that little yellow book, so all these reports, they were done way after Accadia was thrown off the job.

Q. What's the name of the individual (the “Mole”)?

A. I can't tell you that (NYSCEF Doc. No. 113, pp. 191-192).

Immediately following this exchange between the Town's counsel and Mr. Marinaccio, counsel made a demand for the Mole's name (Id., at p. 192). Similarly, following the deposition, the Town served its second set of interrogatories on Accadia, which included the following question regarding the Mole:

Interrogatory No. 5: Identify the ‘inspector’ referenced by Mr. Marinaccio (Marinaccio Transcript, 91: 15-21) who Mr. Marinaccio refused to identify (192: 5-6) (NYSCEF Doc No. 115, p. 6).

Accadia refused to identify the Mole, but instead objected to the question on the alleged grounds that it is,

designed purely to harass, annoy, embarrass and disadvantage defendant's own employee, and requests information in the possession, custody, and/or control of the defendant. Plaintiff further objects to the extent the question seeks evidentiary materials and/or information protected by the attorney-client privilege, materials prepared for litigation or for trial, or confidential attorney work product (NYSCEF Doc. No. 117).

DISCUSSION

The Town's Motion to Compel Accadia to Respond to Interrogatory No. 5 and to Produce Mr. Marinaccio for an Additional Deposition

Interrogatory No. 5 arises out of Mr. Marinaccio's refusal to respond to a question during his deposition. Discovery, particularly at depositions, is broad and liberal. CPLR § 3101(a) provides for full disclosure of all evidence “material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” The words, “material and necessary” are to be “interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Allen v. Crowell-Collier Publ. Co., 21 NY2d 403, 406-407 [1968]). The “test is one of usefulness and reason” (Id., at 406).

Accadia's written objection to Interrogatory No. 5 is insufficient, as a matter of fact and law. Accadia does not contend that responding to Interrogatory No. 5 will embarrass it or Mr. Marinaccio. Rather, Accadia contends that the response may harass or embarrass the Mole. However, Accadia has no standing to make an objection on behalf of the Mole.

Accadia also contends that the identity of the Mole is currently in the possession of the Town. Clearly, the Town is not in possession of the Mole's identity, and this objection is merely pro forma.

Accadia's contention that the identity of the Mole constitutes material prepared for litigation also constitutes a pro forma objection with no real substance, because Accadia's attorney, Anthony Rupp, has stated that he is unaware of the Mole's identity.

Accordingly, Accadia has not articulated a valid basis for objecting to Interrogatory No. 5.

Moreover, it appears that the Mole is still employed by the Town, making it impossible for the Town's counsel to effectively communicate with Town representatives in seeking to defend the Town. Indeed, counsel could unknowingly communicate sensitive and prejudicial information to the Mole, only for the Mole to then repeat it to Mr. Marinaccio. Accordingly, the existence of the Mole, coupled with Accadia's refusal to reveal his identity, impedes the Town's ability to effectively defend itself.

According to Mr. Marinaccio, the Mole told him that Town Project records, which are relevant (and may be critical) to this action were falsified by a Town representative. How such records were allegedly falsified; by whom; when they were allegedly falsified; at whose direction they were allegedly falsified; and for what purpose, all constitute important areas of inquiry for the Town (and Accadia) to explore in discovery, which remains impossible until the Mole is identified.

Finally, the fact that Mr. Rupp is not aware of the Mole's identity is of no consequence ¹ . Mr. Marinaccio and the Mole have a relationship that dates back thirty (30) years, and Mr. Marinaccio is fully capable of passing information about this matter learned from the Mole to Mr. Rupp without revealing the Mole's identity to him or otherwise informing him that the Mole was the source of the information.

For these reasons, the identity of the Mole is “material and necessary” to this action (Allen, supra).

The Town's Motion to Preclude Accadia's Use of the Disputed Photographs

The disputed photographs depict the Project site after the action was commenced. Accadia retained a private investigator to take the photographs between June 2018 and August 2018. As such, the photographs were taken exclusively for purposes of the instant litigation and they are conditionally immune from disclosure (Calkins v. Perry, 168 AD2d 999 [4th Dept 1990]).

The Town has failed to demonstrate that it has a “substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means” (CPLR 301[d][2]). The Town exclusively controlled the Project site and had every opportunity to document the conditions of its own site. Its failure to do so is not synonymous with an inability to do so (Rosado v. Mercedes-Benz of North America, 90 AD2d 515 [2d Dept 1982]).

The plaintiff in Rosado had an expert examine the vehicle at issue in the matter and then junked it. Defendant then retrieved the vehicle from the junkyard and arranged for an expert to test and photograph it. In reversing Special Term's denial of defendant's request for a protective order over the expert's tests and photographs, the appellate division stated the following:

While it may be true, as Special Term found, that the photographs taken and tests performed by the appellant may not be duplicated at this time by reason of the condition of the vehicle, we are not convinced that the withholding of this matter will result in ‘injustice or undue hardship’ (see CPLR 3101, subd [d] ). By the time that the appellant retrieved the vehicle from the junk yard, the plaintiff had had an ample opportunity to test and examine the vehicle in any way she saw fit. To require the disclosure demanded in this regard would be to confer on the plaintiff a benefit to which she is clearly not entitled and one which was not contemplated by the liberality of disclosure mandated by the Legislature (see Abraham v. Hanover Ins. Co., 66 AD2d 808).

Finally, Accadia did not waive its objection to disclosing the photographs, because it asserted applicable general and specific privilege objections in its responses to the Town's First Request for Production.

The Town's Motion to Compel Accadia to Produce Bid Submissions from 2018 and 2019

The Town seeks Accadia's bid submissions on all projects in 2018 and 2019. The Town contends that such other projects are relevant to whether, and to what extent, Accadia was able to mitigate its compensable expenses and/or damages after the Town suspended Accadia.

The demand is overly broad.

Accadia has agreed to turn over all bid submissions relevant to Accadia's sixth cause of action for injurious falsehood and/or within twelve (12) months of its termination from the Project. The proper procedure is for Accadia to turn over all bid submissions within twelve (12) months of its termination from the Project (which will necessarily include any bid submissions related to the sixth cause of action, for such twelve month period).

The Town's Motion for a Protective Order Staying Mr. Bieler's Deposition

For the reasons stated above in connection with issues surrounding the identity of the Mole, Mr. Bieler's deposition shall be stayed pending the completion of Mr. Marinaccio's additional deposition.

Accadia's Cross Motion

In deciding the Town's motion, the Court effectively decided the cross-motion. No representatives of the Town shall be deposed until after both Mr. Marinaccio reveals the identity of the Mole to the Town, and his additional deposition is completed.

Accadia is entitled to a protective order in connection with the Disputed Phonographs and a partial protective order in connection with the bid submissions.

In light of the foregoing, it is hereby

ORDERED, that the Town's motion for a conditional order of dismissal is granted, in that on or before September 30, 2020, Accadia shall communicate the identity of the Mole to the Town and on or before December 1, 2020 (but after the Mole has been identified), Mr. Marinaccio's additional deposition shall be completed. In the event Accadia fails to identify the Mole on or before September 30, 2020, this action shall be dismissed without the need for further application to the Court; and it is further

ORDERED, that the Town's motion to preclude Accadia's use of the Disputed Photographs at trial is denied, and, similarly, Accadia's cross-motion for a protective order in connection with the Disputed Photographs is granted; and it is further

ORDERED, that the Town's motion to compel Accadia to produce bid submissions from 2018 and 2019 is granted, in part, to the extent that Accadia shall disclose all bid submissions within twelve (12) months of its termination from the Project; and it is further

ORDERED, that the Town's motion for a protective order staying the deposition of Mr. Bieler until after the additional deposition of Mr. Marinaccio is completed is granted, and Accadia's cross-motion to compel the depositions of certain representatives of the Town before the completion of Mr. Marinnacio's additional deposition is denied.

This constitutes the Decision and Order of this Court. Submission of an order by the parties is not necessary. The delivery of a copy of this Decision and Order by this Court shall not constitute notice of entry.

FOOTNOTES

1.   Mr. Rupp has stated that he is not aware of the Mole's identity. In so stating, he has not stated that all attorneys at his law firm are unfamiliar with the Mole's identity.

Timothy J. Walker, J.