Opinion
104784/08.
Decided June 8, 2010.
Sara Director, Esq., Barasch, McGarry, Salzman Penson, New York, NY, for plaintiff Graffagnino.
Jan Kevin Myers, Esq., Newman Myers Kreines Gross Harris, P.C., New York, NY, for Bovis Lend Lease.
Noah D. Genel, Esq., Cyrus R. Vance, Jr., District Atty., New York County, New York, NY, for District Attorney.
Victor N. De George, Esq., Lester Schwab Katz Dwyer, LLP, New York, NY, for LMDC and LMCCC.
By decision and order dated September 16, 2008, another justice of this court granted a stay of these consolidated actions pending the termination and disbanding of a Special Grand Jury impaneled for the investigation into the August 18, 2007 fire at the Deutsche Bank Building which resulted in the deaths of two firefighters and injuries to other firefighters.
By decision and order dated February 22, 2010, I granted plaintiff's motion for an order vacating the stay to the extent of "modifying [it] to permit all of the parties to proceed with document discovery; and to permit the parties to proceed with all discovery as against Bovis LMB." I held as follows:
[A]bsent any assertion that document discovery will impact the opposing defendants' fifth amendment rights, there is no reason to stay document discovery. Moreover, Bovis LMB will not be criminally prosecuted for any of its actions related to the fire, and thus, its fifth amendment rights are not implicated and there is no need to continue the stay as against it. ( See Fortress Credit Opportunities I LP v Netschi , 59 AD3d 250 [1st Dept 2009] [even if criminal prosecution pending, court not required to stay civil action]; Campbell v NYCTA, 32 AD3d 350, 352 [1st Dept 2006]). Finally, as a bill of particulars is a statement prepared by a plaintiff in order to amplify her pleadings (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, C3041:7 [1991 main vol]), defendants will not be prejudiced by plaintiffs' service on them of their bills of particulars, if demanded.
I. CONTENTIONS
Now, by notice of motion dated March 11, 2010, intervenor District Attorney of the County of New York (DANY) seeks an order granting leave to reargue plaintiff's motion to vacate the stay on the grounds that I modified the stay "beyond that to which the District Attorney has consented" and because the modification "threatens the integrity of the criminal process." (Affirmation of Noah D. Genel, ADA, dated Mar. 11, 2010 [Genel Aff.]). DANY argues that statements produced in depositions and interrogatories of Bovis Lend Lease LMB, Inc. (Bovis) witnesses and bills of particulars served by plaintiffs "will create statements by individuals who may be witnesses at trial in the criminal case . . . [which] will be made in a context very different from that of testimony at a criminal trial and could result in inconsistencies with testimony at the criminal trial, as innocent as those inconsistencies may be." The harm caused, DANY alleges, is the potential that witnesses' credibility will be damaged or their reliability impugned. Contending that I failed to address these concerns in my decision and order, DANY suggests that I overlooked them in modifying the stay beyond the extent to which it consented. It also maintains that Bovis may have fifth amendment concerns relating to certain discovery. ( Id.).
Bovis supports DANY's motion and alleges that its counsel "cannot even advise or report to the Court [on the stay] which is beyond the scope of our retention." It articulates concern that proceeding with depositions will "generate a need for applications to the Court to restrict or modify the scope of testimony and for rulings on questions so as not to prejudice or compromise the District Attorney's work in the still pending criminal case." It cites a risk that it will be "impaired in the zealous defense of our client in the civil actions . . ." (Affirmation of Jan Kevin Myers, Esq., dated Mar. 24, 2010 [Myers Aff.]).
By notice of cross-motion dated March 25, 2010, defendants Lower Manhattan Development Corporation (LMDC) and Lower Manhattan Construction Command Center (LMCCC) (collectively, LMDC defendants) cross-move for an order granting leave to reargue plaintiff's motion for an order vacating the court-ordered stay. The LMDC defendants rely on a decision and order dated August 3, 2009 whereby the justice who granted the original stay ordered that it "remain in effect and . . . apply in equal force" to the other actions it ordered consolidated with the instant action. (Affirmation of Victor N. De George, Esq., dated Mar. 25, 2010, Exh. B [De George Aff.]). They maintain that plaintiff's motion to vacate the stay constituted an impermissible attempt to reargue the prior motions for the stay, and that while DANY had consented to a modification, they and the other defendants, whom they denominate as the real parties in interest, did not consent as they may be "forced to provide discovery without being able to question Bovis or Galt, who were the parties most knowledgeable about the events that took place prior to August 18, 2007." ( Id.).
By notice of cross-motion dated April 6, 2010, plaintiffs in actions 1, 3, and 9 seek an order granting them leave to move for summary judgment with respect to liability as to Bovis in light of Bovis's admissions in the non-prosecution agreement with DANY which they assert will establish Bovis's liability prima facie. They also contend that "given the logistics of litigating this multi-party, politically motivated, front-page news worthy action where two firefighters lost their lives," absent leave, they will be prevented from obtaining nine percent interest during the intervening years as the trial will not be held "for years and years and years to come." (Affirmation of Sara Director, Esq., dated Apr. 6, 2010).
Although plaintiff Graffagnino submitted written opposition to DANY's motion, including a request for certain discovery, having failed to appear for oral argument, I do not consider her written submission. In any event, having ordered that the parties conduct discovery through Special Master David Solomkin, I need not address Graffagnino's discovery request which is improperly interposed in her opposition papers.
In reply, DANY expresses its understanding that summary judgment motions based solely on Bovis's admissions in the non-prosecution agreement "may require plaintiffs to submit affidavits attesting to certain facts relevant both to the motions for summary judgment and the pending criminal case," and it repeats the assertions set forth above. It also articulates a concern that access by the other defendants to discovery through the civil process is contrary to the discovery rules in criminal cases, and that the "rules and devices provided for in civil practice could interfere with or cause damage to the criminal process by providing the criminal defendants with documents to which they are not entitled under the Criminal Procedure Law, i.e., the affidavits of the Cross-Moving Plaintiffs that would likely be submitted in connection with the summary judgment motions." It relies solely on a 1962 Fifth Circuit decision. (Reply Affirmation of Noah D. Genel, ADA, dated Apr. 12, 2010).
In reply to the cross-motion of plaintiffs in actions 1, 3, and 9, and in support of DANY's motion to reargue, Bovis maintains that DANY's motion should be granted "by reason of the obvious and apparent problems which will arise in conducting discovery at the present time in these consolidated cases," and that it was not this court's intention "to permit a deposition of Bovis or any other defendant . . . under the cloud of conjecture and innuendo that the plaintiff have raised and which will continue to impact the civil cases until such time as the stay is completely lifted and the civil cases proceed accordingly." (Affirmation of John Kevin Meyers, Esq., dated Apr. 13, 2010).
All movants contend that the prior orders constitute the law of the case. (Genel Aff., Myers Aff., De George Aff.).
II. MOTIONS TO REARGUE
A. Applicable standards
A motion for leave to reargue "shall be based upon matters of fact or law allegedly
overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." (CPLR 2221[d][2]).
Pursuant to CPLR 2201, a court may grant a stay of a proceeding in a proper case and upon such terms as may be just. The factors to be considered in determining whether to grant a stay of a civil action pending a criminal proceeding include: (1) avoiding the risk of inconsistent adjudications; (2) duplication of proof; and (3) potential waste of judicial resources. ( Britt v Intl. Bus Svces., Inc., 255 AD2d 143 [1st Dept 1998]).
While an additional and compelling factor is whether a defendant intends to invoke his or her right against self-incrimination ( Britt, 255 AD2d at 143), it is nonetheless well-settled that a party's invocation of the right against self-incrimination is generally an insufficient basis upon which to stay discovery in a civil action ( Fortress Credit Opportunities I LP v Netschi , 59 AD3d 250 [1st Dept 2009]; Access Capital, Inc. v DeCicco, 302 AD2d 48 [1st Dept 2002]; Stuart v Tomasino, 148 AD2d 370 [1st Dept 1989]), even where a grand jury investigation is ongoing ( Matter of Kopf, 169 AD2d 428 [1st Dept 1991]). The determination of whether to stay a civil action pending resolution of a related criminal action is directed to the court's sound discretion. ( Id.; Britt, Inc., 255 AD2d at 144).
B. Analysis
1. Factors
To the extent that I did not specifically address the relevant standards in the February 22 decision, I do so now. Here, plaintiffs have asserted negligence claims against defendants, which must be established by proof of: (1) a duty owed by the defendant to the plaintiff; (2) a breach thereof; and (3) injury proximately resulting therefrom. ( Solomon v City of New York, 66 NY2d 1026). In the criminal action, however, the three individual defendants and Galt have been charged with second-degree manslaughter, criminally negligent homicide, and reckless endangerment. Pursuant to Penal Law 125.15(1), a person is guilty of manslaughter in the second degree when he recklessly causes the death of another person. A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person, and "a person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists." (Penal Law 15.05). Finally, a person is guilty of reckless endangerment when under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person. (Penal Law 120.25).
A finding of guilt at the criminal trial will dispose of the civil action in plaintiff's favor as against Galt, the only defendant common to the two actions. ( Hughes v Farrey , 30 AD3d 244 , 248 [1st Dept 2006], lv denied 8 NY3d 841). Consequently, there is no risk of inconsistent adjudications, duplication of proof, or a waste of judicial resources if both actions proceed simultaneously. And, as Galt is the only common defendant, permitting a stay of all discovery as against the other 11 defendants would be unfair and prejudicial to plaintiffs.
The court's role is to ensure that cases move expeditiously through discovery and onto the trial calendar. ( See Lopez v Imperial Delivery Svce., Inc., 282 AD2d 190 [2d Dept 2001], lv denied 96 NY2d 937 [trial court role is to expeditiously move case to trial calendar]; New York State Crime Victims Bd. v Abbott, 212 AD2d 22 [1st Dept 1995] [goal of trial courts to expeditiously and expediently resolve litigations]). These actions were filed in 2008 and two years later, discovery has not even commenced. Considering the numerous plaintiffs and defendants here, it is likely that the discovery process will take years to complete and plaintiffs must then await a trial date. To date, three individuals and Galt have been indicted, and while the grand jury apparently remains impaneled, there is no indication that it is actively investigating anyone else. According to DANY, the discovery process in the criminal action is completed and a trial date has been set for January 2011. Thus, by the time any depositions begin in this action, it is possible that the criminal action will have ended and the parties' concerns alleviated. In sum, the factors do not weigh in favor of a stay beyond that set forth in the February 22 order.
2. DANY's motion
As DANY has not established that I overlooked any matters of fact or law in the February 22 decision, leave to reargue is denied. Even if I granted leave to reargue, however, DANY's concern that witness' credibility may be damaged if there are inconsistencies between statements made by them during the civil discovery process and those made at the criminal trial is not only speculative, but inherent whenever a person testifies in more than one proceeding. That concern is insufficient to warrant continuing the stay on discovery as requested by DANY.
I also observe that out of the 25 plaintiffs in these consolidated actions, 11 of them are the wives of the deceased and injured firefighters suing for loss of their husband's companionship and services, and do not likely have any personal knowledge of any information relevant to the criminal investigation. DANY's concerns are thus baseless.
Moreover, that parties in a civil action may receive more information in discovery than they would receive during a criminal action has been rejected as a basis upon which to stay a civil action. ( See Citibank, N.A. v Hakim, 1993 WL 481335 [SD NY 1993] [potential for prejudice to civil defendant "is diminished where . . . a private party . . . is the plaintiff in the civil action; it is less likely in such cases that the civil discovery process will be used as a cloak to conduct criminal discovery]; Witzel and Hennes, Balanced Approach for Parallel Proceedings Discovery: Government Requests for Broad Civil Action Stays are Being Rejected, NYLJ, Aug. 17, 2009, at 60, col 1 [argument based on differences in discovery permitted in civil and criminal actions has been rejected as "irrelevant and an insufficient basis" to grant stay]).
Finally, the concerns articulated by DANY, while in theory not insubstantial, remain theoretical, and to the extent their fears are realized, they may be adequately addressed during the civil discovery process. In Campbell v Eastland, 307 F2d 478 (5th Cir 1962), cited by DANY, the Fifth Circuit indicated that a trial court should give "substantial weight" to the public interest in law enforcement when "balancing [that] policy against the right of a civil litigant to a reasonably prompt determination of his civil claims or liabilities." There, however, the plaintiffs were themselves the targets of the pertinent criminal investigations and likely commenced the civil action to gain a procedural advantage in the criminal action, a circumstance not present here.
3. Bovis application
Bovis's concern that the deposition testimony of its employees will require applications to the court concerning privileged matters and will have an adverse impact on judicial economy was addressed in the prior order by directing that all discovery be supervised and controlled by a court attorney-referee, who will be available to arbitrate any issues. In any event, that a party may choose to invoke his privilege against self-incrimination is not a ground on which to stay his deposition. ( See Access Capital, Inc., 302 AD2d at 52 [stay need not be extended to party who invokes privilege]; Stuart, 148 AD2d at 372-373 [court properly denied stay and directed defendants to appear for examination before trial subject to their right to invoke privilege at that time]). Moreover, as a fifth amendment privilege may not be asserted on behalf of a corporate defendant ( Stuart, 148 AD2d at 373), and as Bovis has signed a non-prosecution agreement and thus may not be prosecuted for its actions, there is be no basis upon which any of its witnesses need even seek to invoke the privilege on behalf of Bovis.
4. LMDC's motion
As LMDC also fails to establish that I overlooked any issues in the prior decision, leave to reargue is denied. Even if leave were granted, however, LMDC has not set forth any legal or factual contention that would change my prior determination. While it asserts that it will be prejudiced by being compelled to turn over discovery without being able to question Bovis or Galt, as Bovis will not be prosecuted and its officers or employees cannot assert a privilege against self-incrimination on its behalf, LMDC will suffer no prejudice. To the extent that discovery is sought from any Galt employees, they too are precluded from asserting the privilege on Galt's behalf. ( See eg State v Carey Resources, Inc., 97 AD2d 508 [2d Dept 1983] [agent or officer of corporation cannot invoke privilege and refuse to produce corporate documents over which he has custody in representative capacity]). And while at least one of the indicted individuals is or was a Galt employee, LMDC has not shown that absent that person's testimony, it will be unable to defend itself properly. ( Cf Britt, 255 AD2d at 144 [defendants, owner of bus, demonstrated that without bus driver's critical and necessary testimony in civil action, they would be unable to assert competent defense]).
That plaintiffs may seek information from LMDC if Bovis or Galt refuse to provide it is immaterial; if LMDC has relevant information, then it must provide it, irrespective of whether others have not. LMDC's allegation that Bovis or Galt "might avoid having to provide testimony as to their contractual obligation to indemnify or provide coverage" to LMDC, is not only speculative but meritless as LMDC does not explain how testimony concerning Bovis's or Galt's duty to indemnify or defend it relates to the criminal action and would be protected from disclosure by the privilege against self-incrimination.
Finally, the decision whether to grant a stay is within the sound discretion of the court, and thus, LMDC's consent to modification is not required. Nor does the modification of the violate the law of the case. (1 NY Jur 2d, Actions § 39 [2010] [if stay is granted by court order, court may set it aside for proper cause shown]; see eg Icy Splash Food Beverage, Inc. v Henckel , 14 AD3d 595 [2d Dept 2005] [determination by different justice to grant preliminary injunction did not constitute law of case or preclude reconsideration of issue]).
III. PLAINTIFFS' MOTION FOR LEAVE TO MOVE FOR SUMMARY JUDGMENT
While plaintiffs are understandably frustrated by the delay in this case, and may believe that they can establish Bovis's liability absent discovery, the issue of damages would, in any event, be reserved for trial which must await the completion of discovery as to the other defendants against whom a judgment has not been granted. And, in any event, plaintiffs must still provide discovery as to their damages. Thus, plaintiffs' motion for leave to move for summary judgment at this time is denied.
IV. CONCLUSION
Accordingly, it is hereby
ORDERED, that the District Attorney's motion for leave to reargue is denied; it is further
ORDERED, that Lower Manhattan Development Corporation's and Lower Manhattan Construction Command Center's cross-motion for leave to reargue is denied; and it is further
ORDERED, that plaintiffs' (in actions number 1, 3 and 9) cross-motion for leave to move for summary judgment against Bovis Lend Lease LMB, Inc. is denied.
This constitutes the decision and order of the court.