CHRISTOPHER J. BURKE AND KAREN ANN BURKE, PLAINTIFFS-RESPONDENTS,
ARCADIS G & M OF NEW YORK ARCHITECTURAL AND ENGINEERING SERVICES, P.C., ARCADIS OF NEW YORK, INC., ARCADIS U.S., INC., NIAGARA MOHAWK ENERGY, INC., NIAGARA MOHAWK HOLDINGS, INC., NIAGARA MOHAWK POWER CORPORATION, NATIONAL GRID ENGINEERING AND SURVEY INC., AEROTEK, INC., ROI STAFFING OF MASSACHUSETTS LLC, RESOURCE OPTIONS, INC., DEFENDANTS-APPELLANTS, ET AL., DEFENDANTS.
LAWRENCE, WORDEN, RAINIS & BARD, P.C., MELVILLE (GAIL J.
MCNALLY OF COUNSEL), FOR DEFENDANTS-APPELLANTS ARCADIS G
& M OF NEW YORK ARCHITECTURAL AND ENGINEERING SERVICES,
P.C., ARCADIS OF NEW
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, CURRAN, AND
from an order of the Supreme Court, Onondaga County (Anthony
J. Paris, J.), entered October 2, 2015. The order, among
other things, granted plaintiffs' motion to compel
hereby ORDERED that the order so appealed from is unanimously
modified on the law by directing in the third ordering
paragraph that discovery responses from defendants-appellants
are required within 30 days of service of a copy of the order
of this Court with notice of entry, by striking from the
fourth ordering paragraph the language relating to privilege,
and by vacating the fifth ordering paragraph and as modified
the order is affirmed without costs.
Defendants Arcadis G & M of New York Architectural and
Engineering Services, P.C., Arcadis of New York, Inc. and
Arcadis U.S., Inc. (Arcadis defendants) and defendants
Niagara Mohawk Energy, Inc., Niagara Mohawk Holdings, Inc.,
Niagara Mohawk Power Corporation, National Grid Engineering
and Survey Inc., Aerotek, Inc., ROI Staffing of Massachusetts
LLC, and Resource Options, Inc. (Niagara Mohawk defendants)
appeal from an order that, inter alia, granted
plaintiffs' motion to compel discovery.
action arises out of an injury sustained by Christopher J.
Burke (plaintiff) while he was working in the Utica Harbor on
a project to excavate hazardous materials. Plaintiffs contend
that the project was overseen by various entities, including
defendants, and that the Arcadis and Niagara Mohawk
defendants (collectively, defendants) were negligent in
creating and implementing an unreasonably dangerous work plan
and violated Labor Law § 200 by failing to provide
plaintiff with a reasonably safe place to work, thereby
causing injury to plaintiff's legs.
August 2014, plaintiffs served their first set of discovery
demands, which broadly requested materials that included
"all correspondence" relating to the Utica Harbor
project on which plaintiff was injured. In October 2014,
plaintiffs served a second set of discovery demands
requesting additional documents, which were equally broad in
November 2014, the Arcadis defendants responded to
plaintiffs' first and second set of discovery demands by
producing some documents but objecting to many of
plaintiffs' demands, including the demand for
correspondence, as "overbroad, unduly burdensome, and
not calculated to obtain discoverable material." In
response, plaintiffs sent a letter to all defendants noting
that they received objections to the "breadth" of
the demand for correspondence, and requesting that defendants
supply them with a description of the correspondence that
each defendant had in its possession. On December 3, 2014,
the attorney for the Arcadis defendants noted that they were
under no obligation to provide plaintiffs with the material
requested, and she declined to "correct a palpably bad
December 30, 2014, plaintiffs sent defendants a notice to
take the deposition of a person knowledgeable of the
location, organization, identification, and form of
defendants' records concerning the Utica Harbor project.
In early January 2015, defendants advised that they would not
appear for depositions prior to plaintiff's deposition
being taken. Thereafter, plaintiffs sent a letter to the
court on January 9, 2015, asking it to intervene and resolve
the discovery dispute. On February 4, 2015, the court sent a
letter stating that defendants were correct concerning the
priority of depositions and the breadth of plaintiffs'
discovery demands and advising plaintiffs to tailor their
demands to specify what was being sought.
February 23, 2015, plaintiffs served a third set of discovery
demands, wherein they requested 168 disclosures. The Arcadis
defendants responded to the third set of discovery demands on
March 19, 2015, objecting to each demand as overbroad and
unduly burdensome, among other things, and indicating, in
response to some of the demands, that they were searching
their records to determine if any responsive documents
March 23, 2015, plaintiffs sent the Arcadis defendants a
letter asking them to explain why their request was overbroad
and unduly burdensome. On April 18, 2015, plaintiffs sent
defendants a letter indicating that responses to the third
set of discovery demands were overdue, and requesting that
defendants provide a response to the demands by May 1, 2015
"to avoid a motion."
4, 2015, plaintiffs filed the instant motion to compel
defendants to respond to the third set of discovery demands.
On May 22, 2015, the Arcadis defendants submitted a
supplemental response to the third set of discovery demands,
noting, where relevant, that they did not have any responsive
documents in their possession, and attaching, where relevant,
the responsive documents in their possession. In response to
plaintiffs' motion, the Arcadis defendants asserted that
they had fully complied with and responded appropriately to
all of plaintiffs' "onerous, overbroad,
over-reaching, and improper demands."
response to the motion, the Niagara Mohawk defendants argued
that plaintiffs did not make a good faith effort to confer
with counsel for the Niagara Mohawk defendants to resolve the
discovery issues raised by the motion. Shortly thereafter,
the Niagara Mohawk defendants served plaintiffs with a number
of documents in response to the discovery demands.
matter was heard on August 5, 2015 and plaintiffs sent a
proposed order to the court that granted plaintiffs'
motion to compel discovery and indicated that, in the event
that defendants did not comply with the discovery order by
September 5, 2015, plaintiffs would be entitled to inspect
defendants' records, among other things. On August 11,
2015, the Arcadis defendants sent a letter to the court
objecting to the proposed order as beyond the scope of the
discussions held at the court conference, and beyond the
scope of the remedy requested in plaintiffs' motion. The
Niagara Mohawk defendants also sent a letter to the court
echoing the objections of the Arcadis defendants. ...