Opinion
# 2015-015-055 Claim No. 120992 Motion No. M-86169
05-22-2015
TUTOR PERINI CORPORATION f/k/a PERINI CORPORATION v. THE STATE OF NEW YORK
Duane Morris LLP By: Mark A. Canizio, Esq. and Jessica Singh, Esq. 1540 Broadway New York, NY 10036 Dingess Foster Luciana Davidson & Chleboski LLP By: John R. Dingess, Esq. PNC Center, Third Floor 20 Stanwix Street Pittsburgh, PA 15222 Honorable Eric T. Schneiderman, Attorney General By: Eidin Beirne, Esq. Assistant Attorney General The Capitol Albany, New York 12232
Synopsis
Defendant failed to sustain its burden of establishing that certain records created by its claims' personnel were privileged.
Case information
| UID: | 2015-015-055 |
| Claimant(s): | TUTOR PERINI CORPORATION f/k/a PERINI CORPORATION |
| Claimant short name: | TUTOR PERINI CORP. |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120992 |
| Motion number(s): | M-86169 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Duane Morris LLP By: Mark A. Canizio, Esq. and Jessica Singh, Esq. 1540 Broadway New York, NY 10036 Dingess Foster Luciana Davidson & Chleboski LLP By: John R. Dingess, Esq. PNC Center, Third Floor 20 Stanwix Street Pittsburgh, PA 15222 |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Eidin Beirne, Esq. Assistant Attorney General The Capitol Albany, New York 12232 |
| Third-party defendant's attorney: | |
| Signature date: | May 22, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for an Order pursuant to CPLR 3120 and 3124 directing defendant to produce certain discovery and to produce Marie Corrado, an employee of the defendant, for an examination before trial. Defendant opposes the motion on the ground that, with the exception of certain documents which it asserts are privileged, it has fully complied with claimant's discovery demands. Defendant further argues that the deposition of Ms. Corrado would be fruitless as she possesses no relevant information.
Claimant, Tutor Perini Corporation, seeks damages for delays allegedly occurring during the performance of a contract for the reconstruction of 3.2 kilometers of highway and 14 bridges on the Long Island Expressway/Cross Island Parkway interchange.
Claimant asserts that substantial completion of the project was delayed through no fault of its own thereby entitling it to additional compensation under the terms of its contract with the State. Originally, the "B Clock" portion of the work (all work necessary to complete the contract except landscaping, turf establishment, engineer's office and equipment and mobilization items) was to be completed in 852 days, beginning on September 25, 2000 and ending on January 24, 2003 (see claimant's Exhibit 1, OOC # 21, sheet 2 of 4). Delays "mostly stem[ming] from the reconstruction of the West Alley Road Bridge across the Cross Island Parkway" caused the B clock portion of the work to be extended by 159 days - from January 24, 2003 through July 2, 2003 (id.). As a result, Order On Contract (OOC) # 21 was issued in September 2003 to afford claimant the benefit of "time related dispute compensation as defined by NYSDOT Standard Specification Section 109-05D" for the expected 159-day delay in completing the project (id.). Costs for the additional work were estimated in OOC # 21 to be $1,465,000 for executive supervision and field personnel; $398,000 for labor escalation costs of the prime and subcontractors; $793,000 for material escalation and indirect costs, and $1,975,000 for equipment costs. OOC # 21 stated that "[a]fter the force account work is completed, the actual costs to perform the work will be calculated based on the summary of all daily records, and the difference between the actual cost and this initial [force account work estimate] . . . A subsequent OOC will then be processed to adjust this [force account work] item by increasing or decreasing the quantity by the required amount" ( id.,OOC # 21, sheet 4 of 4).
In 2008, during the process of closing out the contract, the amounts allocated in OOC # 21 were significantly reduced in OOC # 84 as follows: $411,526.49 for executive supervision and field supervision costs, a reduction of $1,053,473.51; $6,351.29 for labor escalation costs for prime and subcontractors, a reduction of $391,648.71; $45,355.54 for material escalation and indirect costs, a reduction of $747,644.46 and $0.00 for equipment costs, a reduction of $1,975,000. The decreases were explained in the OOC # 84 as follows:
Claimant also alleges that Orders On Contracts #85 and #86 reduced its compensation for additional work.
"The original invoices included costs that are not allowed by Specification and were "redlined" from the monthly packages. These costs included miscellaneous charges such as small tools, safety incentives, supervisor's bonuses, rentals, safety clothing, etc. In addition, all equipment was deleted from the monthly invoice which was base[d] on a directive from the NYS Comptroller's Office that stated equipment which is used for Contract item work cannot be paid for under extended overhead. Also, based on a CPM [critical path method] analysis performed by the Albany main office claims unit, invoiced charges submitted for the time period from January 25, 2003 thru May 21, 2003 were deemed as non-compensable and were deleted from the invoices" (claimant's Exhibit 2).
Eric Celia, P.E., Director of the DOT's Claims Bureau at the time, performed the critical path method (CPM) analysis which resulted in the determination that certain invoiced charges for the time period January 25, 2004 through May 21, 2003 were non-compensable (claimant's Exhibit 4, Celia deposition, p. 55, 68-69). He testified that in performing the analysis he relied solely on the CPM schedule updates and narratives produced by the claimant, pursuant to the contract, to determine which of claimant's operations were impacted by circumstances not under its control (claimant's Exhibit 4, pp. 67,101-103). In a report entitled Extended Project Costs Analysis and Conclusions, dated January 11, 2008 (claimant's Exhibit 3), Mr. Celia concluded as follows:
Mr. Celia began his employment with the Department of Transportation (DOT) in 1984 as Junior Engineer assigned to highway design. For the next several years he worked in the field inspecting bridges and in 1988 he performed the role of structures designer in the regional bridge design office. From 1989 through 1991, Mr. Celia worked as an Engineer In Charge on several bridge projects and on April 28, 2004, he was appointed Director of the Claims Bureau where he remained until February 2014 when he was appointed Director of the Project Management Office for the DOT.
Mr. Celia states in an affidavit that his report dated January 11, 2008 was based on his review of claimant's CPM updates numbers 10 and 28, narratives accompanying those updates, and its CPM consultant's responses to those updates (Celia affidavit, ¶ 7).
"• The B1 extension was based on schedule #10 which indicates that the Department would extend the B clock by 159 calendar days from January 24, 2003 to July 2, 2003. This review does not dispute this finding. A determination must be made to quantify the compensable portion of the extended time period. Update #10 indicates that work location L110-S4, Ramp B was scheduled to be completed on 21May03 and L400, Final Milling and Paving to be completed on 19May03.
• Perini's failure to stay on schedule with the bid B completion date for work not impacted by the Department requires the Department to apportion responsibility for the B1 extended period. The concurrent offsetting delays must be considered.
• A review of the contemporaneous CPM schedules reveals that the concurrent offsetting delay period ends 21May03. Simply put, had the Department not delayed any work, Perini still would have finished late and not met their proposed B clock completion date. Therefore, the Department will begin compensation on 22May03 and pay actual, reasonable and verifiable extended project overhead costs.
• The time period from 25Jan03 to 21May03 has been deemed non-compensable as it is a period of concurrent delay and as such both parties field management costs essentially offset.
• . . . [T]he Department has agreed to reimburse Perini for extended overhead costs from 22May03 until the date they completed all B work, 9Jan04" (claimant's Exhibit 3, pp. 3-4).
During the course of an examination before trial, Mr. Celia testified that although he identified the root causes of the delay for work completed after January 24, 2003, he communicated his analysis in a privileged document drafted at the direction of counsel, Janice McLachlan, Esq., DOT's Director of Legal Affairs (Claimant's Exhibit 4, pp. 103-104). Without reference to this document, Mr. Celia stated at his deposition that he was "not prepared" to testify regarding the reasons for the delay (id. at p. 121). In addition, Mr. Celia testified that he was unfamiliar with the Comptroller's directive, referred to in the OOC # 84, which was the purported basis for the diallowance of all costs related to equipment which was used for contract work items (Exhibit 4, Celia EBT, pp. 50-51).
Following Mr. Celia's deposition, claimant's counsel requested from the defendant:
"[A]ll documents referred to in, and upon which, the DOT's January 11, 2008 Extended Project Costs Analyses and Conclusions . . . is based. These include, but are not limited to, the following:
1) '[P]roject records' and any 'compiled records, documents, and references' in Mr. Celia's files that 'identify the impacts which were the responsibility of the Department and those which were the responsibility of Perini.' . . .
2) A copy of the 'directive from the NYS Comptroller's Office' referenced in Exh. C-135, pg. 2, which purportedly disallowed all 'additional' equipment charges related to base contract work performed by Perini during the extended work periods . . .
3) Copies of all documents relating to the State's 'redlining' of Perini's invoices where the State removed charge items that the State claimed were not reimbursable to Perini under the Specifications. . .
4) Copies of 'Eric Celia's files' referenced as items 19 through 25 in the State's privilege log for Paper Documents" (claimant's Exhibit 5).
In response to the first category of documents requested by the claimant, defendant indicated that it had previously provided all of the project records and documents "with the exception of documents regarding which the State has asserted a claim of privilege" (claimant's Exhibit 6, ¶ numbered 1).
With respect to claimant's second request, relating to the Comptroller's directive disallowing payment for equipment used in regular contract work during the extended period, defense counsel has indicated "I am advised by the Comptroller's Office that it does not issue a document or other communication known as a 'directive' " (id. at ¶ numbered 2). Defense counsel indicated further that although the Comptroller's Office does issue policies, no such policy was located and the "Comptroller's Office is unable to identify any policy issued by that office disallowing claimed costs of working equipment in an extended contract period" (id.).
In response to the third category of documents requested, relating to the State's redlining of Perini's invoices, the defendant responded that the request was "vague, over broad and burdensome" and, in any event, "all project records held by the Department of Transportation not [the] subject of a privilege claim have been produced . . ." (id. at ¶ numbered 3).
Lastly, with respect to claimant's request for copies of Eric Celia's files referenced in items 19 through 25 of the State's privilege log, the State's response indicated that Mr. Celia's analysis was based upon the schedules and narratives supplied by the claimant and its consultant's responses thereto. Defendant also indicated that "[i]nsofar as any documents in Mr. Celia's file bear notes, highlighting, marginalia, comments, etc., placed thereon by Mr. Celia, or are identified and/or organized in such a way as to address or refute aspects of the claim, such contents are privileged as attorney work product and material prepared for litigation. . ." (id. at ¶ numbered 4).
Claimant now moves for an Order compelling the defendant:
"a) To produce all documents prepared, received or relied upon by Eric Celia and/or the State to support Orders On Contracts 84, 85 and 86, (from items 19-A through 25 [ff] and 32 [a] through 32 [m] of the State's Supplemental Privilege Log, dated January 15, 2015) including but not limited to Mr. Celia's 'root cause' analysis of the 117 days of concurrent delay he assigned to Perini;
b) Directing the State to produce Marie Corrado for a deposition, and to produce documents prepared by or copied to Ms. Corrado (from folders 26 through 28 of the State's Original Privilege Log, dated June 6, 2014) withheld on ground s of privilege" (Notice of Motion to Compel Disclosure") . . .
Defendant opposes the motion on the grounds that Mr. Celia's report, identifying the root causes of the project delays, was drafted at the behest of Janice McLachlan, Esq., DOT's Director of Legal Affairs and, as such, is privileged under the attorney-client privilege and as material prepared in anticipation of litigation. In an affidavit submitted in opposition to claimant's motion, Mr. Celia explains that the Claims Bureau, which is a part of the Office of Legal Affairs, "works at all times at the direction and under the supervision of counsel" and that, as Director of the Claims Bureau, he "worked at the direction and under the direct supervision of the Department's Director of Legal Affairs Janice McLachlan, Esq. (Celia affidavit, ¶ 2).
Mr. Celia testified that in his role as Director of the Claims Bureau he was required to analyze contract claims and disputes from an engineering perspective (claimant's Exhibit 4, Celia EBT, p. 18). According to the applicable job description, his duties included, inter alia, performing a detailed study and analysis of facts surrounding a claim; identifying the available evidence to be used in support of the claim; advising the trial attorney of relevant engineering principles; identifying areas of possible liability as well as opportunities for a vigilant defense; and, for contract related disputes, providing an analysis of the alleged damages, and "detailed recommendations for areas where merit has been identified, consistent with the terms of the contract" (defendant's Exhibit A, p. 1).
Mr. Celia explains in his affidavit that the DOT is divided into 11 regions, each of which is responsible for contract administration within the limits of its geographic territory. Although the Regions may seek legal advice from counsel's office at any time, counsel's office generally is not involved in a contract dispute until it is submitted for resolution to the Commissioner. With respect to the Claims Bureau, Mr. Celia states that it "is only involved with a contractor dispute submitted to the Commissioner if directed to become involved by Department Counsel" (Celia affidavit, ¶ 3). Claimant submitted its contract dispute to the Commissioner in April 2005 and Mr. Celia avers that his first association with the subject contract was in June 2005 when he was assigned to the matter by Ms. McLachlan. Prior to closing out the project, Mr. Celia attended various meetings with claimant's representatives throughout the dispute resolution process and "came to believe that the gulf between the Department's position and that of the Perini's position was probably irreconcilable" (Celia affidavit, ¶ 5). In January 2008, claimant's then-counsel requested in a letter addressed to Ms. McLachlan that the contract be closed out, presumably to enable claimant to pursue its claim in the Court of Claims (defendant's Exhibit D). Mr. Celia states that "[a]t the direction of Jan McLachlan, I drafted a document directed to the issue of time-related damages, particularly extended overhead, to be used by the Region in the close-out process" (Celia affidavit, ¶ 6). The document prepared by Mr. Celia, which is dated January 11, 2008 and entitled Project Extended Costs, Analysis and Conclusions, has been disclosed to the claimant (claimant's Exhibit 3). Mr. Celia states in his affidavit that he relied solely upon claimant's CPM updates and narratives in drafting the report (Celia affidavit, ¶ 8). He also states that since "there is no assertion in CPM schedule Update No. 10 that the Department or a third party caused any delay [at locations L110-S4, Ramp B and L400, Final Milling and Paving] . . . for purposes of the Report, [he] accepted, without independent analysis, that Perini was responsible for any delay at these locations" (Celia affidavit, ¶ 10). Separate and apart from the report prepared during the process of closing out the contract, Mr. Celia prepared a report identifying the root causes of the delays. He states that "[t]he analysis of root causes of delays was performed in my role as claims engineer under and at the direction of counsel, and was part of the effort to develop the Department's position with a view to resolving the dispute with Claimant and avoiding threatened litigation" (Celia affidavit, ¶ 13). Defendant contends, therefore, that the report in which the root causes of project delays are discussed is exempt from disclosure by virtue of both the attorney-client privilege and the privilege accorded material prepared solely for litigation.
Claimant also seeks to compel defendant to produce Marie Corrado for an examination before trial. Claimant contends that Ms. Corrado's deposition is material and necessary to the defense of defendant's counterclaims alleging fraud in the selection of its Minority Business Enterprise (MBE) subcontractors. It alleges in this regard that Ms. Corrado attended a meeting in which claimant's compliance with the MBE requirements of the contract was discussed and that she was privy to certain correspondence involving claimant's MBE compliance. In opposition to that branch of claimant's motion seeking a deposition of Marie Corrado, defendant submits an affidavit of Ms. Corrado (defendant's Exhibit D) in which she avers that she is an attorney admitted to practice law in the State of New York and served as the secretary and counsel to the DOT's Contract Review Unit from 1986 through 2008. She states that although her name appears on an attendance sheet of a meeting held on November 25, 2002 in which claimant allegedly disclosed the investigation by the U.S. Attorney's Office into MBE fraud, she has no recollection of the substance of the meeting. Ms. Corrado also states that she did not participate in any subsequent meetings which may have been held to discuss MBEs that were under investigation and has no recollection of requesting a letter from claimant's counsel regarding whether or not claimant or its officers or employees were targets of the investigation underway by the U.S. Attorneys Office (defendant's Exhibit D, Corrado affidavit , ¶¶ 3,4,5).
Notwithstanding claimant's counsel's contrary representations, Ms. Corrado indicates that she was "not involved in the day-to-day administration of the State's MBE program on the subject project", she never had knowledge of any corrective action that may have been required of claimant, and she was not involved in the acceptance or rejection of claimant's MBE utilization plan (defendant's Exhibit D, Corrado affidavit, ¶ 7). Ms. Corrado indicates that "at all material times my role was as legal advisor to and representative of the Department and my communications were in furtherance of that role" (defendant's Exhibit D, Corrado affidavit, ¶ 8).
The standard set forth in CPLR 3101 (a), directing "full disclosure of all evidence material and necessary in the prosecution or defense of the action," is a liberal one favoring full disclosure (Allen v Crowell-Collier Publ. Co., 21 NY2d 403 [1968]). However, CPLR 3101 (b) exempts from disclosure privileged material, including communications subject to the attorney- client privilege, codified in CPLR 4503. Because application of the attorney-client privilege " 'constitutes an "obstacle" to the truth-finding process" (Matter of Priest v Hennessy, 51 NY2d 62, 68 [1980] [citation omitted]), obvious tension exists with the liberal disclosure provisions of CPLR 3101 (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377 [1991]). As a result, the burden of establishing the privilege is on the party asserting it, the protection claimed must be narrowly construed; and its application must be " 'cautiously observed to ensure that its application is consistent with its purpose' " (Matter of Priest v Hennessy, 51 NY2d at 68; see also Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d at 377).
"The attorney-client privilege encourages 'full and frank communication between attorneys and their clients and thereby promote[s] broader public interests in the observance of law and administration of justice' " (Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 138-139 [1996], quoting Upjohn Co. v United States, 449 US 383, 389 [1981]). For the privilege to apply, the communication must be confidential and made either " 'for the purpose of obtaining legal advice and directed to an attorney who has been consulted for that purpose' . . . [or] for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship" (Rossi v Blue Cross & Blue Shield of Greater N.Y., 73 NY2d 588, 593 [1989], quoting Matter of Grand Jury Subpoena [Bekins Record Stor. Co.]., 62 NY2d 324, 329 [1984]; see also Nicastro v New York Cent. Mut. Fire Ins. Co., 117 AD3d 1545 [4th Dept 2014], rearg denied 119 AD3d 1458 [4th Dept 2014], lv dismissed 24 NY3d 998 [2014]).
Here, defendant invokes the attorney-client privilege to shield from disclosure certain documents either prepared, received or relied upon by Mr. Celia or the State to support OOC # 84, # 85 and # 86. While defendant established that Mr. Celia relied upon nothing other than the claimant's CPM updates and narratives in formulating the conclusions set forth in the January 11, 2008 Extended Project Costs Analysis and Conclusions report, it failed to meet its burden of establishing that the report prepared by Mr. Celia containing his analysis of the root causes of the project delays is exempt from disclosure under the attorney-client privilege.
Initially, it is unclear whether or not the report in which these root causes were identified was confidential as the recipients of the report were not specifically disclosed and the report itself was not submitted for the Court's in camera review. More significantly, however, the defendant failed to establish that the report was made for the purpose of obtaining legal advice or facilitating the rendition of legal advice, and the mere fact that Mr. Celia's analysis was performed in his role as claims engineer, under and at the direction of counsel in an effort to avoid litigation, is insufficient to warrant application of the privilege (see Plimpton v Massachusetts Mut. Life Ins. Co., 50 AD3d 532 [1st Dept 2008]; Central Buffalo Project Corp. v Rainbow Salads, 140 AD2d 943 [4th Dept 1988]; cf., State of New York v Sand & Stone Assoc., 282 AD2d 954 [3d Dept 2001]; Lichtenberg v Zinn, 243 AD2d 1045 [3d Dept 1997]). Notably in this regard, Mr. Celia's deposition testimony indicates that he prepared the root-cause analysis report at the direction of counsel Jan McLachlin "to evaluate the status of the project and all the events leading up to, on or before schedule Update No. 10" (claimant's Exhibit 4, Celia EBT, p. 105). According to Mr. Celia's own testimony, therefore, the root-cause analysis report was prepared for purposes other than obtaining or facilitating the rendition of legal advice and was not "primarily and predominantly of a legal character" (Melworm v Encompass Indem. Co., 112 AD3d 794, 796 [2d Dept 2013]). Thus, the attorney-client privilege does not operate to shield the root-cause analysis report from disclosure.
Nor is the root-cause analysis exempt from disclosure on the ground it constitutes material prepared solely for litigation. CPLR 3101 (d) (2) creates a qualified privilege for materials prepared in anticipation of litigation. Such materials need not be disclosed unless the party requesting the disclosure establishes a "substantial need" therefor, and that substantially equivalent information cannot be obtained from other sources without undue hardship (id.). The law is well settled, however, that reports which are prepared in the regular course of business to aid a party in the process of deciding which of multiple actions to pursue are not exempt from disclosure although they were motivated in part by the potential for litigation (Lalka v ACA Ins. Co., ___AD3d ___ 2015 NY Slip Op 03995 [4th Dept 2015]; Sigelakis v Washington Group, LLC, 46 AD3d 800 [2d Dept 2007]; Plimpton v Massachusetts Mut. Life Ins. Co., 50 AD3d 532 [1st Dept 2008]; Bombard v Amica Mut. Ins. Co., 11 AD3d 647 [2d Dept 2004]; Bertalo's Rest. v Exchange Ins. Co., 240 AD2d 452 [2d Dept 1997]; Landmark Ins. Co. v Beau Rivage Rest., 121 AD2d 98 [2d Dept 1986]). As succinctly stated in an analogous context by the Appellate Division, Second Department, in Bombard : "Reports prepared by insurance investigators, adjusters, or attorneys before the decision is made to pay or reject a claim are . . . not privileged and are discoverable . . ., even when those reports are 'mixed/multi-purpose' reports, motivated in part by the potential for litigation" (11 AD3d at 648 [citations omitted]). Here, Mr. Celia readily admits that he prepared the report containing his root-cause analysis in order to "develop the Department's position with a view to resolving the dispute with Claimant and avoiding threatened litigation" (Celia Affidavit, ¶ 13). Inasmuch as no "firm decision" had been made regarding payment of the pending contract claim when the root-cause analysis report was written, it constitutes a mixed-motive report prepared in the ordinary course of business rather than one prepared exclusively for litigation (see Landmark Ins. Co. v Beau Rivage Rest., 121 AD2d at 101). Thus, the report is not exempt from disclosure on the ground it was prepared solely for litigation and must be disclosed to the extent of the factual data contained therein (McDonald v Finley's Inc., 20 AD3d 900 [4th Dept 2005]). The Court will review the document in camera to ensure that any opinions and conclusions in the report are redacted (Donohue v Fokas, 112 AD3d 665 [2d Dept 2013]; McDonald v Finley's Inc., supra; Commerce & Indus. Ins. Co. v Laufer Vision World, 225 AD2d 313 [1st Dept 1996]).
With respect to claimant's remaining request for documents which were "prepared, received or relied upon by Eric Celia and/or the State to support Orders On Contract 84, 85 and 86, (from items 19-A through 25 [ff] and 32 [a] through 32 [m] of the State's Supplemental Privilege Log, dated January 12, 2015)" (claimant's Notice Of Motion To Compel, ¶ a), the defendant is directed to produce these documents to the Court for in camera inspection. In doing so, the defendant shall identify each document submitted to the Court by reference to the privilege log identification number and description. This information must be provided in a cover letter to the Court, a copy of which shall be provided to claimant's counsel without the enclosed documents.
To the extent claimant seeks the directive from the Comptrollers Office which was referenced in both OOC # 84 (claimant's Exhibit 2) and Eric Celia's report of January 11, 2008 entitled Extended Project Costs Analyses and Conclusions (claimant's Exhibit 3, p.2), the defendant has clearly responded that no such written directive exists, which is all that is required.
Lastly, claimant has demonstrated a substantial likelihood that Marie Corrado has information, not possessed by those individuals previously deposed, which is material and necessary to the prosecution of its claim (CPLR 3101 [a]; Gomez v State of New York, 106 AD3d 870 [2d Dept 2013]; Radon Constr. Corp. v Alcon Constr. Corp., 277 AD2d 368 [2d Dept 2000]; Zollner v City of New York, 204 AD2d 626 [2d Dept 1994]; cf., Espinoza v City of New York, 113 AD3d 590 [2d Dept 2014]). Although it appears Ms. Corrado's recollection of the pertinent events may be limited or the information sought to be obtained privileged, the witness or her attorney may raise any issue of privilege in response to specific questions where appropriate (Stanwick v A.R.A. Servs., 124 AD2d 1041 [4th Dept 1986]). Accordingly, defendant shall make Ms. Corrado available for a deposition and provide to the Court for its in camera inspection all documents prepared by or copied to Ms. Corrado as may be reflected in folders 26 through 28 of the State's original privilege log dated June 6, 2014.
Based on the foregoing, claimant's motion is granted and it is hereby
ORDERED that within 20 days of the date this Decision and Order is filed defendant shall submit to the Court for its in camera review the root-cause analysis report prepared by Eric Celia and all documents which were prepared, received or relied upon by Eric Celia and/or the State to support Orders On Contract 84, 85 and 86 as may be reflected in items 19-A through 25 (ff) and 32 (a) through 32 (m) of the State's Supplemental Privilege Log, dated January 12, 2015, and it is further
ORDERED that within 20 days of the date this Decision and Order is filed defendant shall provide to the Court for its in camera review all documents prepared by or copied to Ms. Corrado as may be reflected in folders 26 through 28 of the State's original privilege log dated June 6, 2014, and it is further
ORDERED that within 45 days of the date this Decision and Order is filed defendant shall make Marie Corrado available for an examination before trial.
May 22, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Notice of motion dated January 12, 2015;
Affidavit of Mark Canizio sworn to January 12, 2015 with exhibits 1-13;
Memorandum of Law of Mark A. Canizio, Jessica Singh and John R. dingess dated January 12, 2015 with attachment;
Affidavit of Eric Celia sworn to February 6, 2015 with exhibits A-J;
Memorandum of Law of Eidin Beirne dated February 6, 2015;
Reply affirmation of Mark Canizio dated February 27, 2015 with exhibits 14-23.