In the Matter of Steam Pipe Explosion at 41st Street and Lexington Avenue.---------------------------------Carrie Tassa, Plaintiff,v.Consolidated Edison Inc., et al., Respondents, Team Industrial Services, Inc., Appellant, City of New York, Defendant. (And Other Actions.)--------------------------------Consolidated Edison Inc., et al., Third-Party Respondents, v. Team Industrial Services, Inc., Third-Party Appellant.

Brief

N.Y.April 26, 2016

Juan C. Gonzalez jgonzalez@sacslaw.com {00959489.1} 1983 MARCUS AVENUE LAKE SUCCESS, NEW YORK 11042 (516) 588-3300 Facsimile: (516) 488-2324 SHAUB, AHMUTY, CITRIN & SPRATT, LLP ATTORNEYS AT LAW 77 WATER STREET, SUITE 702 NEW YORK, NEW YORK 10005 (212) 599-8200 Facsimile: (212) 850-5545 info@sacslaw.com February 22, 2016 By Overnight Delivery John P. Aisello Clerk of the Court New York State Court of Appeals 20 Eagle Street Albany, New York 12207 Re: In re Steam Pipe Explosion at 41st Street and Lexington Av. (SSM) APL-2015-00281 SACS File No.: 44-00399 Dear Mr. Aisello: We are appellate counsel to Lewis Brisbois Bisgaard & Smith LLP, attorneys for defendant/third-party defendant/appellant Team Industrial Services, Inc. (hereinafter “Team”) in the above-captioned appeal. Pursuant to Rule 500.11(e) of this Court’s Rules of Practice, Team respectfully requests that the Court accept the within as a formal reply to Con Ed’s letter opposition dated February 10, 2016. Reply Argument Con Ed’s Analysis Fundamentally Distorts The Rather Simple Issue For This Court To Resolve The fundamental question raised by this appeal is simply whether the Appellate Division majority erroneously concluded that the motion court applied “too harsh a standard” for resolving the instant discovery dispute. The majority’s litmus test for application of the wrong legal standard was “mere reference to” certain case law. Once again, as this Court has stated, “[m]ere reference to [certain case law] does not indicate that the Court failed to apply the proper legal standard”. People v. Olson, 9 N.Y.3d 968, 969 (2007). Con Ed not only avoids Olson altogether, but it also ignores that the First Department itself has done precisely what the majority in this case criticized the motion court of doing. See Gonzalez SSM Letter at 6 (discussing Herbert v. Sivaco Wire Corp., 289 A.D.2d 71 [1st Dep’t 2001] [evaluating ‘substantial similarity’ of prior accident evidence on motion to compel discovery], which relied upon Hyde v. Rensselaer Cnty., 51 N.Y.2d 927 [1980] [evaluating admissibility of prior accident evidence upon showing that “relevant conditions of the subject accident and the previous one were substantially the same.”]). In short, this Court has rejected the litmus test that the majority Page 2 {00959489.1} SHAUB, AHMUTY, CITRIN & SPRATT, LLP in this case employed as an analytically unsound tool for assessing whether a court applied the correct legal standard. Con Ed presses this litmus test with impunity but without any supporting authority. The Appellate Division’s conclusion is borne out of nothing more than the motion court’s reference to cases discussing the meaning of a common phrase (‘substantial similarity’) that indisputably carries the same meaning albeit in two admittedly different contexts – evidence discoverability versus evidence admissibility. But Con Ed concedes that whether in the context of evidence discoverability or admissibility, “a court must [nevertheless] assess ‘substantial similarity’ in both contexts” (Bivens SSM Letter Opp. at 7) (emphasis added). Similarly, Con Ed does not dispute that the term could only have one meaning, regardless of context. What Con Ed is really saying is that reference to cases that discuss ‘substantial similarity’ in the context of evidence admissibility means that the motion court applied that term in a “more restrictive” manner. See Bivens SSM Letter Opp. at 7 (“when determining discoverability a court must make that [‘substantial similarity’] assessment in a liberal, permissible manner, while when considering admissibility, the assessment is necessarily more restrictive”). But Con Ed’s argument is rife with red herrings. It should be obvious that the distinction between evidence discoverability (made liberal by the allowance of discovery of even inadmissible evidence, if it could reasonably lead to the discovery of admissible evidence) versus evidence admissibility (made strict by the rules of evidence) should not operate to alter the definition of ‘substantial similarity’ depending upon the context in which it is used. Under the ‘stricter’ framework for evaluating evidence at trial, admissibility of prior accidents is not assessed under some heretofore unknown stricter definition of ‘substantial similarity,’ but is simply restricted by the rules of evidence. Such admissibility restrictions include hearsay, chain of custody, authentication and foundation issues, witness competency, subsequent remedial measures, character evidence, the best evidence rule, parol evidence, and the like. In short, the strictness of an admissibility standard is borne not by some stricter or narrower definition of the phrase ‘substantial similarity’ as Con Ed posits, but by the particular requirements for admissibility necessitated by the type of evidence proffered. Beyond ignoring Team’s arguments, Con Ed also completely ignores the cogent dissent by Justices Friedman and Sweeny, who observed that the only available test the motion court applied was simply, whether viewing the pertinent facts and allegations against a party arising out of a prior and current accident, there is a ‘substantial similarity’ between them. It is clear enough that this minimal test is one of relevancy required by CPLR 3101(a)’s ‘material and necessary’ standard. See Yoshida v. Hsueh-Chih Chin, 111 A.D.3d 704, 705-06 (2d Dep’t 2013) (Court of Appeals’ “interpretation of ‘material and necessary’ in Allen has been understood ‘to mean nothing more or less than ‘relevant’”), quoting Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of N.Y., Book 7B, CPLR C3101:5, quoting Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 407 (1968). ‘Substantial similarity’ is a relevancy limitation to otherwise unbounded, burdensome discovery. See e.g. Herbert v. Sivaco Wire Corp., 289 A.D.2d 71, 72 (1st Dep’t 2001) (“Inasmuch as such prior incidents involve unspooling difficulties apparently substantially similar to the problem alleged by plaintiff, they are material and relevant to establishing whether Sivaco's product was hazardous and, if so, Page 3 {00959489.1} SHAUB, AHMUTY, CITRIN & SPRATT, LLP whether Sivaco had notice of such hazard. That being the case, the sought material should have been produced.”) (citations omitted). Con Ed ignores all of the foregoing, opting instead to press the facially incorrect analytical premise that Olson rejected. The Appellate Division’s Decision Improperly Alters The Definition Of The Term “Substantial Similarity” Contrary to Con Ed’s downplaying of the significance of the Appellate Division’s holding, the majority’s decision will have far-reaching repercussions and will make discovery all the more costly and uncertain. Specifically, this new rule of discoverability of prior accident evidence will cause confusion in the lower courts because it now introduces ambiguity to a phrase that up until this point was well-defined and easily applied. Future litigants will now have only an uncertain guidepost as to the meaning of the term ‘substantial similarity’, the precise meaning of which will now be known only to the individual court’s self-discerning view of how liberal it should be in assessing the two accidents in question. Alternatively, under the rubric of a ‘liberal’ disposition towards discovery, a court deciding a motion to compel could order production of burdensome discovery requests even if the prior accident evidence or pertinent allegations have only a remote resemblance to those in the present case. All of this, it should be kept in mind, occurs in a context where courts across the nation, federal and state, have been striving to curb excessive, costly and unnecessary discovery litigation. See e.g. Seaman v. Wyckoff Heights Med. Ctr., Inc., 25 A.D.3d 598, 599 (2d Dep’t 2006); see also Robertson v. People Mag., 14 CIV. 6759 (PAC), 2015 WL 9077111, at *2 (S.D.N.Y. Dec. 16, 2015) (2015 amendments to Rules of Procedure “serve[] to exhort judges to exercise their preexisting control over discovery more exactingly.”). Relief Of Disgorgement Of The 48 Banker’s Boxes And Deposition Testimony Is Properly Before This Court Team requested that “if this Court agrees” (at 4) (emphasis added) that the Appellate Division majority erred, then Con Ed should be ordered to disgorge the improperly obtained discovery consisting of dozens of bankers’ boxes and deposition testimony, and be barred from using such evidence at any trial in this litigation. Con Ed posits that this requested relief is not properly before this Court because “this issue was neither raised below nor addressed by either the Motion Court or the Appellate Division” (Bivens SSM Letter at 9). Con Ed’s argument fails, and warrants little response other than to note that it was Con Ed that sought affirmative relief from the Appellate Division on its appeal from the motion court’s order precluding the Diamond Shamrock discovery. Team had no appeal pending before the Appellate Division on this issue, and therefore, it had no reason to ask for affirmative relief. In contrast, before this Court is Team’s appeal, and positive relief (e.g., reversal) from this Court would require total disgorgement of the very Diamond Shamrock files that the Appellate Division majority ordered Team to produce. As such, if this Court agrees with Team and reinstates the motion court’s order, then it necessarily follows that Con Ed should relinquish the SHAUB, AHMUTY, CITRIN & SPRAIT, LLP Page 4 discovery it has improperly obtained, lest Con Ed proposes that this Court get into the business of issuing advisory opinions such that it determines the files not discoverable, reverses the Appellate Division's order, and yet leaves Con Ed free to do what it wishes with the discovery that Team was erroneously forced to produce. Conclusion For all of the foregoing reasons, and those more fully stated in Team's letter brief dated January 22, 2016, this Court should (1) reverse the order of the Appellate Division for the reasons articulated by dissenting Justices Friedman and Sweeny and those therein, (2) remit this matter to the Appellate Division for entry of an order (i) reinstating the order of the motion court that denied Con Ed's motion to compel production of the Diamond Shamrock litigation files, (ii) directing Con Ed to disgorge and return to Team's counsel the 48 bankers boxes already produced, together with the two depositions taken following such production, (iii) precluding Con Ed from introducing or otherwise relying upon any evidence at any trial in this litigation going forward based upon the discovery afforded by the granting of its motion to compel, and (3) grant Team such further and different relief as this Court deems just and proper. Of Counsel: Timothy R. Capowski Juan C. Gonzalez {00959489.1} Very truly yours, ~. a Juan C. Gonzalez Page 5 {00959489.1} SHAUB, AHMUTY, CITRIN & SPRATT, LLP cc: Frances E. Bivens Davis Polk & Wardwell LLP 450 Lexington Avenue New York, New York 10017 (212) 450-4000 Attorneys for Defendants/Third-Party Plaintiffs Consolidated Edison, Inc. and Consolidated Edison Company of New York, Inc. (Via Regular Mail) Henry G. Miller Clark, Gagliardi & Miller, P.C. 99 Court Street White Plains, New York 10601 (914) 946-8900 Attorneys for Defendants/Third-Party Plaintiffs Consolidated Edison, Inc. and Consolidated Edison Company of New York, Inc. (Via Regular Mail) Richard W. Babinecz Carole A. Borstein David M. Santoro 4 Irving Place New York, New York 10003 (212) 460-4600 Attorneys for Defendants/Third-Party Plaintiffs Consolidated Edison, Inc. and Consolidated Edison Company of New York, Inc. (Via Regular Mail) Christopher J. Murdoch, Esq. Corporation Counsel of the City of New York Assistant Corporation Counsel 100 Church Street, Room 4-203 New York, NY 10007 (212) 788-0645 Attorney for Defendant/Third-Party Defendant City of New York (Via Regular Mail) Robert Sheps, Esq. Sheps Law Group P.C. 25 High Street Huntington, NY 11743 (631) 249-5606 Plaintiff’s Liaison Counsel (Via Regular Mail)