SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

370 

CA 16-01302 

PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, CURRAN, AND SCUDDER, JJ. 

 

CHRISTOPHER J. BURKE AND KAREN ANN BURKE, 

PLAINTIFFS-RESPONDENTS, 

V MEMORANDUM AND ORDER

 

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 

YORK, INC., AND ARCADIS U.S., INC. 

THORN GERSHON TYMANN & BONANNI, LLP, ALBANY (MARSHALL BROAD OF

COUNSEL), FOR DEFENDANTS-APPELLANTS 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. 

ROSSI & ROSSI, NEW YORK MILLS (VINCENT J. ROSSI, JR., OF COUNSEL), FOR

PLAINTIFFS-RESPONDENTS. 

 

Appeals 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 discovery. 

It is 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. 

Memorandum: Defendants Arcadis G&M of New York Architectural and

Engineering Services, P.C., Arcadis of New York, Inc. and Arcadis
-2- 370 

CA 16-01302 

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.

This 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. 

In 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 scope. 

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 discovery demand.”

On 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.

On 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,
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CA 16-01302 

among other things, and indicating, in response to some of the

demands, that they were searching their records to determine if any

responsive documents existed. 

On 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.” 

On May 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.” 

In 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. 

The 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. On September 29, 2015, the court issued an order granting

plaintiffs’ motion and adopting the language in plaintiffs’ proposed

order in its entirety, and defendants appealed.

We agree with defendants that the court abused its discretion in

ordering them to deliver their discovery materials to plaintiffs’

attorney on a date that preceded the date on which the order was

issued (see generally Adams v Deloreto, 272 AD2d 875, 875-876). We

therefore modify the third ordering paragraph by requiring discovery

responses from defendants within 30 days of service of a copy of the

order of this Court with notice of entry.

We further agree with defendants that the court abused its

discretion in ordering them to provide discovery without regard to

privilege, inasmuch as “[t]he determination whether a particular
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CA 16-01302 

document is shielded from disclosure by the attorney-client privilege

‘is necessarily a fact-specific determination’ ” (Sevenson Envtl.

Servs., Inc. v Sirius Am. Ins. Co., 64 AD3d 1234, 1236, lv dismissed

13 NY3d 893), and defendants have not engaged in any conduct that

waived the attorney-client privilege (cf. Banach v Dedalus Found.,

Inc., 132 AD3d 543, 544; Deutsche Bank Trust Co. of Ams. v Tri-Links

Inv. Trust, 43 AD3d 56, 63-64). We therefore further modify the order

by striking the language concerning privilege from the fourth ordering

paragraph.

The court further abused its discretion in awarding plaintiffs

unfettered access to defendants’ documents inasmuch as plaintiffs did

not request such relief in their motion to compel and the relief

granted is dramatically different from that which was actually sought

(see Tirado v Miller, 75 AD3d 153, 158). The court also erred in

awarding plaintiffs attorney’s fees, inasmuch as there is nothing in

the record to suggest that defendants or their attorneys willfully

refused to comply with plaintiffs’ discovery demand or that defendants

or their attorneys acted frivolously (see Accent Collections, Inc. v

Cappelli Enters., Inc., 84 AD3d 1283, 1284; Davoli v New York State

Elec. & Gas Corp. [appeal No. 1], 248 AD2d 989, 989; see also 22 NYCRR

130-1.1). We therefore further modify the order by vacating the fifth

ordering paragraph. 

Finally, we note that the Niagara Mohawk defendants failed to

respond to plaintiffs’ third set of discovery demands or otherwise

produce documents in response until after the motion was made, and we

therefore see no reason to address their contention that plaintiffs

did not make a good faith effort to resolve the discovery dispute

prior to the motion.

Entered: April 28, 2017 Frances E. Cafarell

Clerk of the Court