Opinion
2011-05-23
William RAPETTI and Audrey Rapetti, Plaintiffs,v.EAST 51ST STREET DEVELOPMENT COMPANY, LLC, Reliance Construction Group, and RCG Group, Inc., Defendants.East 51st Street Development Company, LLC, Defendant/Third Party Plaintiff,Joy Contractors, Inc., New York Crane & Equipment Corporation, Stroh Engineering Services, P.C., Favelle–Favco Cranes (USA), Inc., Consolidated Edison Company of New York, Inc., Civetta Cousins JV LLC, Rapetti Rigging Services, Inc., Lift–All Company, Inc., Liftex Corporation, Weinstock Brothers Corporation, C.S. Mechanical & Equipment Corporation, Crane Inspection Services, Inc., Brady Marine Repair Company, Inc., Langan Engineering & Environmental Services, Inc., and John Doe 1–10 (fictitious), Third–Party Defendants.
Gallo Vitucci and Klar (by Cindy Yu) New York, for Defendant Reliance Construction Group and RCG Group Inc.O'Melveny & Myers LLP (by Thomas Carruthers) New York, for Defendant East 51st Street Development Company, LLC.Aidala & Bertuna, P.C. (by Marianne E. Bertuna) Brooklyn, for William Rapetti.
Gallo Vitucci and Klar (by Cindy Yu) New York, for Defendant Reliance Construction Group and RCG Group Inc.O'Melveny & Myers LLP (by Thomas Carruthers) New York, for Defendant East 51st Street Development Company, LLC.Aidala & Bertuna, P.C. (by Marianne E. Bertuna) Brooklyn, for William Rapetti. MEMORANDUM DECISION
In this consolidated, multi-party litigation involving the 2008 tower crane collapse at 303 East 51st Street, New York, New York (the “ construction site”), defendant Reliance Construction Ltd., d/b/a RCG Group (“RCG”) moves by order to show cause to compel plaintiff, William Rapetti (“plaintiff”) to provide RCG written consent or authorization to unseal the records and evidence used in his criminal trial, in response to RCG's discovery demands dated August 27, 2010, and to provide all related documents, videos and data in his possession.
Factual Background
In or about May 2008, plaintiff commenced the instant action for damages resulting from injuries he sustained as a result of the crane collapse accident. Plaintiff alleges that defendants failed to provide or erect safety devices necessary to give him proper protection, and failed to provide adequate slings and chains to secure the steel collar. Plaintiff further alleges that he “did not contribute to the happening of the occurrence complained of by reason of any act or omission on his part” (Complaint, ¶ 49).
In January 2009, plaintiff was indicted for, inter alia, manslaughter and criminally negligent homicide in connection with his involvement at the construction site as a result of the accident.
However, on July 22, 2010, plaintiff was found not guilty on all 20 counts, and his criminal records were automatically sealed pursuant to CPL § 160.50 by the Honorable Justice Roger Hayes, of the Supreme Court of the New York, County of New York.
By order of Justice Karen Smith, dated March 5, 2009, the instant action was stayed and plaintiff's obligation, “in his individual capacity, to produce documents in response to discovery demands in this consolidation action, and dot appear for a deposition, both in his individual capacity and as principal for Rapetti Rigging, [was] stayed until further order of the court....” (Order, p. 6). Subsequent to plaintiff's acquittal, the stay on discovery was lifted.
CPL § 160.50 provides, in relevant part:
1. Upon the termination of a criminal action or proceeding against a person in favor of such person, ... the record of such action or proceeding shall be sealed. Upon receipt of notification of such termination and sealing:
During the course of discovery in this action, RCG sought plaintiff's consent to unseal the records from plaintiff's criminal
attorney and by service of a demand for same, to no avail.
In support of its order to show cause, RCG argues that under CPLR 3101's liberal disclosure rule, the evidence contained in plaintiff's criminal records, such as videos, photographs, test results and expert reports, are “material and necessary” to the causation of the crane collapse. For example, plaintiff's engineering expert, Leo Lee (“Lee”), testified in the criminal trial concerning tests he performed involving four slings attached upon a collar and a tower section. At the criminal trial, plaintiff's defense counsel used the results of Lee's testing to refute the claims against plaintiff.
RCG argues that although criminal records are sealed upon acquittal, plaintiff waived the sealing privilege upon his commencement of this personal injury action by placing the sealed information in those criminal records at issue, especially since plaintiff seeks to shift liability for an accident onto the defendant. RCG requests such information in order to adequately prepare for plaintiff's upcoming, continued deposition.
Defendant East 51st Street Development Company, LLC (“East 51st”) adopts and incorporates by reference RCG's arguments.
In opposition, plaintiff argues that the purpose of CPL § 160.50 is to remove any stigma from the accusation of criminal conduct terminated in favor of the accused. There exists no categorical interpretation of “all official records and papers” and plaintiff's entire record should remain sealed. In accordance with CPL § 160.50, there is no basis to allow the prior trial proceeding which resulted in an acquittal to be unsealed; nor is there any statutory language which requires plaintiff to consent to an unsealing of a trial record which resulted in his acquittal.
In reply, RCG argues that plaintiff does not dispute that, as a matter of law, he waived the sealing privilege afforded by CPL § 160.50 when he commenced this civil action. RCG does not seek “all official records and papers relating to the arrest of prosecution on file with any court, police agency, or prosecutor's office.” Rather, RCG seeks all raw data, photographs, videos, animations, calculations, and/or graphs associated with the testing performed and/or relied upon by the experts in the criminal trial, including the testing performed by the Occupational Safety & Health Administration (“OSHA”) and relied upon by the New York City Department of Buildings (“DOB”) in the preparation of its Investigative Report (the “Requested Items”). The DOB hired an engineering and investigation firm, Ove Arup & Partners, P.C. (“Ove Arup”), which “witness[ed] sling tests specified by OSHA, [reviewed] raw data from those tests, and [reviewed] OSHA related correspondences.” Ove Arup prepared an investigative report containing conclusions reached concerning the incident, which is in the possession of the parties. However, the investigative report does not contain the raw data, testing results, calculations, and/or video animations upon which Ove Arup's conclusions are based. It is believed that both the prosecution and the criminal defense's experts were provided with such raw data, calculations, and/or video animations, and that such items were admitted into evidence. However, RCG was never given the opportunity to observe the sling tests performed, to review the raw data from those tests, or to review any OSHA-related correspondence. RCG argues that the Requested Items are crucial in ascertaining the methodologies and testing configurations employed by OSHA, the NYCDOB, and the criminal defense's expert in arriving at their conclusions, and
are material and necessary to RCG's defense in this action. Also, the Requested Items may assist defendants in avoiding any duplicative, expensive, and possibly unnecessary testing.
RCG contends that it has exhausted every available avenue in its efforts to obtain the Requested Items, by contacting the prosecution and defense and making FOIL requests to OSHA, to no avail. Given that the testing performed by plaintiff's criminal defense expert, as well as the testing performed by OSHA, played its part in plaintiff's ultimate acquittal, all reports, data, videos, photographs, and animation associated with that testing, should be disclosed.
East 51st Street adopts and incorporates by reference the RCG's arguments in reply.
Discussion
The Court is vested with broad discretion to when supervising disclosure in order to facilitate the resolution of cases ( see Alveranga–Duran v. New Whitehall Apts. LLC, 40 A.D.3d 287, 836 N.Y.S.2d 24, 25 [1st Dept. 2007] ) citing SKR Design Group v. Avidon, 32 A.D.3d 697, 699, 822 N.Y.S.2d 3 [1st Dept. 2006]. However, such discretion is restricted by boundaries defined in the CPLR and caselaw. Article 31 of the CPLR permits liberal discovery of all matters that are material and necessary to the prosecution or defense of an action ( NCP ex rel. NCP v. City of New York, Slip Copy, 16 Misc.3d 1102(A), 2007 WL 1775503 [Supreme Court New York County 2007] ). Specifically, CPLR § 3101(a) entitles parties to “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” What is “material and necessary” is left to the sound discretion of the lower courts and includes “any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” ( Andon v. 302–304 Mott Street, 94 N.Y.2d 740, 746, 709 N.Y.S.2d 873, 731 N.E.2d 589 [2000] ). And, the Court may, in the exercise of its discretion, compel parties to produce discovery the Court deems material and necessary (CPLR 3124 “If a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response”).
The records sought by RCG and East 51st are material and necessary to the defense of plaintiff's negligence action. According to the submissions, the records admitted into evidence during the criminal trial against plaintiff consisted of, inter alia, “videos and photographs taken of the testing arrangement, the equipment used for testing, the manner in which the slings were set up, the angles at which the slings were choked around the tower section legs, and the simulated sling pull tests.” (RCG Reply, ¶ 7). Lee testified that he performed sling tests and a simulation of the collar installation utilizing tower sections and collars from the crane ( id. ¶ 8). Further, a video of such testing was shown in the criminal trial. ( Id. ). Such records are directly related to the contributory negligence claims asserted by RCG and East 51st and the defense of plaintiff's case.
Plaintiff's reliance on CPL § 160.50 to shield such information from disclosure is unavailing. It is uncontested that CPL § 160.50 requires, in substance, that “upon termination of a criminal action or proceeding in favor of an accused, a court of criminal jurisdiction shall enter an order directing that all official records and papers
relating to the arrest or prosecution of the terminated case be sealed” ( David v. Rogers, 63 A.D.2d 908, 406 N.Y.S.2d 55 [1st Dept. 1978] ). “CPL 160.50 was enacted in 1976 in the same reform legislation that added a provision to the Human Rights Law (now Executive Law § 296[16] ) making it an unlawful discriminatory practice for an employer, in connection with the employment of an individual, to inquire about or act adversely on any prior criminal accusation which had terminated in the employee's favor” ( Matter of Joseph M, 82 N.Y.2d 128, 131, 603 N.Y.S.2d 804, 623 N.E.2d 1154 [1993] ). “The purpose in adding these provisions to the Criminal Procedure Law and the Human Rights Law was to ensure that the protections provided to exonerated accused's be consistent with the presumption of innocence, which simply means that no individual should suffer adverse consequences merely on the basis of an accusation, unless the charges were ultimately sustained in a court of law” ' ( id., at 131, 603 N.Y.S.2d 804, 623 N.E.2d 1154, citing Governor's Approval Mem., 1976 McKinney's Session Laws of N.Y., at 2451). “[T]he legislative objective was to remove any ‘stigma’ flowing from an accusation of criminal conduct terminated in favor of the accused, thereby affording protection (i.e., the presumption of innocence) to such accused in the pursuit of employment, education, professional licensing and insurance opportunities ( id., at 131–132, 603 N.Y.S.2d 804, 623 N.E.2d 1154).
However, “[p]rivileges, while important in the law, are not absolute. Indeed, most rights and privileges are waivable, even such constitutional rights as the right to a jury trial, the right to appeal and the right against self-incrimination” ( Green v. Montgomery, 95 N.Y.2d 693, 723 N.Y.S.2d 744, 746 N.E.2d 1036 [2001] ). As such, it has been held that where “an individual, who has records that would otherwise be kept sealed under Criminal Procedure Law § 160.50, affirmatively places the underlying conduct at issue by bringing a civil suit, the statutory protection afforded by section 160.50 is waived, as the privilege, which is intended to protect the accused, may not be used as “a sword to gain an advantage in a civil action” ( Best v. 2170 5th Ave. Corp., 60 A.D.3d 405, 873 N.Y.S.2d 631 [1st Dept. 2009]; Rodriguez v. Ford Motor Co., 301 A.D.2d 372, 753 N.Y.S.2d 63 [1st Dept. 2003] citing Green v. Montgomery, 95 N.Y.2d 693, 701, 723 N.Y.S.2d 744, 746 N.E.2d 1036 (holding that “by denying that intoxication caused the [defendant] driver to lose control of the car, and, by way of cross claim, seeking to put the blame for the accident on the co-defendant car manufacturer,” the co-defendants driver and owners have “affirmatively put the circumstances surrounding the driver's arrest and indictment in issue, and thus waived the protection afforded by CPL 160.50”)).
At issue in the criminal trial was, inter alia, plaintiff's alleged role in causing the crane collapse, and evidence was admitted directly related to this issue. In this instant civil proceeding, plaintiff alleges that defendants failed to provide or erect safety devices necessary to give him proper protection, and failed to provide adequate slings and chains to secure the steel collar. Evidence of plaintiff's claims admitted in the criminal trial are highly probative on this issue. Consequently, by placing at issue herein, the cause of the crane collapse, and what, if any role plaintiff played in causing the accident, plaintiff waived the protection afforded by CPL § 160.50. Further, there is no basis to limit the scope of the criminal trial record to a select category of documents, as plaintiff's (defense) counsel proposes.
RCG's instant application does not constitute a reargument or renewal,
or res judicata or collateral estoppel
Pursuant to CPLR Rule 2221 “(a) A motion for leave to renew or to reargue a prior motion, ... shall be made, on notice, to the judge who signed the order .... and ... shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination.
FN5. Res judicata and collateral estoppel are related doctrines that are designed to limit or preclude relitigation of matters that have already been determined ( Fusco v. Kraumlap Realty Corp., 1 A.D.3d 189, 767 N.Y.S.2d 84 [1st Dept. 2003] citing People v. Evans, 94 N.Y.2d 499, 502, 706 N.Y.S.2d 678, 727 N.E.2d 1232). Res judicata generally precludes relitigation of claims, while collateral estoppel precludes relitigation of issues ( id.).
of the Corporation Counsel's previous request to unseal portions of the criminal records (See Transcript of Criminal Trial, dated November 12, 2010 pp. 2–3). In the prior unsealing proceeding before Justice Hayes, the Corporation Counsel on behalf of the Department of Buildings, sought to unseal the Department of Building's own materials that were created by the Department of Buildings for potential prosecution of statutory violations against plaintiff.
And, although upon his acquittal of all charges, plaintiff believed that his criminal case would be “behind him,” he lost the privilege of protecting the criminal record when he assumed the posture of “plaintiff” in this civil action.
Further, even if plaintiff were to discontinue his action, such circumstance would not change the result ( Rodriguez v. Ford Motor Co., 301 A.D.2d 372, 753 N.Y.S.2d 63 [1st Dept. 2003] [“Appellants' [co-defendants'] announcement in their brief that they have “discontinued” their cross claim against the manufacturer does not change the result” that appellants waived the privilege under CPL 160.50 by affirmatively placing the blame of the subject car accident upon the co-defendant car manufacturer] ).
Conclusion
Based on the foregoing, it is hereby
ORDERED that the order to show cause by Reliance Construction Ltd., dba RCG Group, and adopted by East 51st Street Development Company, LLC, to compel plaintiff, William Rapetti to provide Reliance written consent or authorization to unseal the records and evidence used his criminal trial, is granted; and it is further
ORDERED that William Rapetti shall execute an authorization or other necessary documentation to facilitate the unsealing of his criminal trial records within 24 hours, so as to provide Reliance Construction Ltd., dba RCG Group and East 51st Street Development Company, LLC with such records.
Subsequent to the oral argument, the court received an email from RCG's counsel stating that she was instructed to send Judge Hayes a letter explaining the basis of RCG's motion and attaching a copy of this Order.
This constitutes the decision and order of the Court.
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(c) all official records and papers, including judgments and orders of a court but not including published court decisions or opinions or records and briefs on appeal, relating to the arrest or prosecution, ... shall be sealed and not made available to any person or public or private agency;....