FILED: NEW YORK COUNTY CLERK 08/01/2019 12:16 PM
`FILED: NEW YORK COUNTY CLERK 08M2019 12:16 P
`
`NYSCEF DOC. NO. 155
`NYSCEF DOC. NO. 155
`
`INDEX NO. 110019/2004
`INDEX NO- “0019/2004
`
`
`
`
`
`R«C«IV«D NYSCEF: 08/01/2019
`RECEIVED NYSCEF: 08/01/2019
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`NEW YORK COUNTY
`
`PRESENT:
`
`
`HON. LOUIS L. NOCK
`
`PART
`
`IAS MOTION 38EFM
`
`Justice
`
`""""""""""""""""""""""""""""""""""""""""""""X
`11 ESSEX STREET CORP"
`
`INDEX No.
`MOTION DATE
`
`110019/2004
`05/22/2019
`
`Plaintiff,
`
`_V_
`
`7 ESSEX STREET LLC. C/O VESTA DEVELOPMENT
`GROUP, DESIMONE CONSULTING ENGINEERS,
`JEFFREY M. BROWN ASSOCIATES, INC. (THIRD PARTY
`PLAINTIFF), BERZAK GOLD, P.C.,BIG APPLE WRECKING
`AND CONSTRUCTION CORP, CASINO DEVELOPMENT
`GROUP, INC. (THIRD PARTY DEFENDANT), CASINO
`DEVELOPMENT CORP. (THIRD PARTY DEFENDANT),
`CASINO DEVELOPMENT CORP. F/K/A DANNA
`
`CONSTRUCTION COMPANY (THIRD PARTY
`DEFENDANT), WILLIAM CHARON (THIRD PARTY
`DEFENDANT),
`
`_________________________________________________________________________________x
`
`Defendant.
`
`008, 009, 010,
`011,012,013,
`014,015,016,
`017, 018 019
`
`MOTION SEQ. NO.
`
`DECISI%NO;%§DER ON
`
`Motion 008,009, 010, 011, 012, 013, 014, 015, 016, 017, 018, and 019 are decided in accord
`
`with the annexed transcript.
`
`
`
`
`L mSL.NOCK,.SC.
`
`NON-FINAL DISPOSITION
`GRANTED IN PART
`SUBMIT ORDER
`
`B] OTHER
`
`7I30/2019
`
`DATE
`
`CHECK ONE:
`
`APPLICATION:
`
`CHECK IF APPROPRIATE:
`
`CASE DISPOSED
`GRANTED
`SETTLE ORDER
`
`|:| DENIED
`
`INCLUDES TRANSFER/REASSIGN
`
`FIDUCIARY APPOINTMENT El REFERENCE
`
`110019/2004 11 ESSEX STREET CORP. vs. 7 ESSEX STREET LLC.
`Motion No. 008 009 010 011012 013 014 015 016 017 018 019
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`Page 1 of 1
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`FILED: NEW YORK COUNTY CLERK 08M2019 12:16 P
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`NYSCEF DOC. NO. 155
`NYSCEF DOC. NO. 155
`
`INDEX NO. 110019/2004
`INDEX NO- “0019/2004
`
`
`
`
`
`R«C«IV«D NYSCEF: 08/01/2019
`RECEIVED NYSCEF: 08/01/2019
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`NEW YORK COUNTY
`
`PRESENT:
`
`
`HON. LOUIS L. NOCK
`
`PART
`
`IAS MOTION 38EFM
`
`Justice
`
`""""""""""""""""""""""""""""""""""""""""""""X
`11 ESSEX STREET CORP"
`
`INDEX No.
`MOTION DATE
`
`110019/2004
`05/22/2019
`
`Plaintiff,
`
`_V_
`
`7 ESSEX STREET LLC. C/O VESTA DEVELOPMENT
`GROUP, DESIMONE CONSULTING ENGINEERS,
`JEFFREY M. BROWN ASSOCIATES, INC. (THIRD PARTY
`PLAINTIFF), BERZAK GOLD, P.C.,BIG APPLE WRECKING
`AND CONSTRUCTION CORP, CASINO DEVELOPMENT
`GROUP, INC. (THIRD PARTY DEFENDANT), CASINO
`DEVELOPMENT CORP. (THIRD PARTY DEFENDANT),
`CASINO DEVELOPMENT CORP. F/K/A DANNA
`
`CONSTRUCTION COMPANY (THIRD PARTY
`DEFENDANT), WILLIAM CHARON (THIRD PARTY
`DEFENDANT),
`
`_________________________________________________________________________________x
`
`Defendant.
`
`008, 009, 010,
`011,012,013,
`014,015,016,
`017, 018 019
`
`MOTION SEQ. NO.
`
`DECISI%NO;%§DER ON
`
`Motion 008,009, 010, 011, 012, 013, 014, 015, 016, 017, 018, and 019 are decided in accord
`
`with the annexed transcript.
`
`
`
`
`L mSL.NOCK,.SC.
`
`NON-FINAL DISPOSITION
`GRANTED IN PART
`SUBMIT ORDER
`
`B] OTHER
`
`7I30/2019
`
`DATE
`
`CHECK ONE:
`
`APPLICATION:
`
`CHECK IF APPROPRIATE:
`
`CASE DISPOSED
`GRANTED
`SETTLE ORDER
`
`|:| DENIED
`
`INCLUDES TRANSFER/REASSIGN
`
`FIDUCIARY APPOINTMENT El REFERENCE
`
`110019/2004 11 ESSEX STREET CORP. vs. 7 ESSEX STREET LLC.
`Motion No. 008 009 010 011012 013 014 015 016 017 018 019
`
`Page 1 of 1
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`NYSC3F DOC. NO. 155
`NYSCEF DOC. NO. 155
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`IND
`EX NO.
`110019/2004
`INDEX NO. 110019/2004
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`
`
` *uIV‘ .D
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`NYSCEF:
`08/01/2019
`RECEIVED NYSCEF: 08/01/2019
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK - CIVIL TERM - PART 38
`__________________________________________________ X
`
`11 ESSEX STREET CORP.,
`
`—against—
`
`Index No.
`
`110019/04
`
`Plaintiff,
`
`JEFFREY M. BROWN ASSOCIATES,
`
`INC.,
`
`Defendant.
`__________________________________________________ X
`
`JEFFREY M. BROWN ASSOCIATES,
`
`INC.,
`
`Third—Party Plaintiff,
`
`-against—
`
`DANNA CONSTRUCTION CORP., DANNA EQUIPMENT CORP.,
`and MICHAEL DANNA,
`
`Third—Party Defendants.
`_________________________________________________ X
`
`111 Centre Street
`
`New York, New York
`2019
`
`July 9,
`
`B E F O R E:
`
`HONORABLE LOUIS L. NOCK
`
`Supreme Court Justice
`
`10
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`ll
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`16
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`A P P E A R A N C E S:
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`WEG & MYERS, PC
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`Attorneys for the Plaintiff
`52 Duane Street
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`New York, New York 10007
`
`BY:
`BY:
`
`DENNIS T. D'ANTONIO, ESQ.
`JOSHUA L. MALLIN, ESQ.
`
`HARRINGTON, OCKO & MONK, LLP
`
`Attorneys for the Defendant/
`Third~Party Plaintiff
`JEFFREY M. BROWN ASSOCIATES,
`81 Main Street
`
`INC.
`
`White Plains, New York 10601
`BY:
`KEVIN J. HARRINGTON, ESQ.
`
`BY: MICHAEL W. FREUDENBERG, ESQ.
`
`(Continued)
`
`dk
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`NYSCEF DOC. NO. 155
`NYSCEF DOC. NO. 155
`
`INDEX NO. 110019/2004
`INDEX NO- 110019/2004
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`RECEIVED NYSCEF: 08/01/2019
`RECEIVED NYSCEF: 08/01/2019
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`2
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`\
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`,
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`l
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`2
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`A P P E 1% R A N C E S:
`
`RUSSO & TONER, LLP
`
`3 Attorneys for the Third—Party Defendants
`DANNA CONSTRUCTION CORP., DANNA EQUIPMENT CORP.
`and MICHAEL DANNA
`
`4
`
`33 Whitehall Street
`
`5
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`New York, New York 10004
`
`BY:
`
`KEVIN G. HORBATIUK, ESQ.
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`V»
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`Diane Kavanaugh, RPR
`Senior Court Reporter
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`NYSC3F DOC. NO. 155
`NYSCEF DOC. NO. 155
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`INDEX NO. 110019/2004
`INDEX NO- 110019/2004
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`RECEIVED VYSCEF: 08/01/2019
`RECEIVED NYSCEF: 08/01/2019
`
`Proceedings
`
`THE COURT: Good morning, everyone.
`
`We are back on the record.
`
`It is a pleasure for me
`
`to have all counsel here again in the matter of 11 Essex
`
`Street Corp. versus 7 Essex Street, LLC.
`
`The case bears
`
`Index No. 110019 of 2004.
`
`Ladies and gentlemen,
`
`thank you for being here.
`
`We are all very familiar with this case. This is a
`
`case that will be a jury trial. And this is now the second
`
`pretrial conference in this matter.
`
`It is an important
`
`conference, as all of them are. And I
`
`thank everybody for
`
`participating.
`
`The last time we were on the record together we
`
`were talking about the receipt of papers on the parties'
`
`respective motions in limine.
`
`I want to thank everybody for very skilled, very
`
`scholarly, excellent work product on all sides.
`
`Thank you,
`
`ladies and gentlemen.
`
`I have become intimately familiar with your
`
`arguments and your positions because I have read every
`
`single word and have researched every single authority that
`
`you have proffered before me. And I appreciate your hard
`
`work.
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`The purpose of today's conference, as I stated last
`
`time we were together, was for me to issue my determinations
`
`on all of those motions in limine.
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`dk
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`FILED: NEW YORK COUNTY CLERK 08/01/2019 12:16 PM
`FILED: NEW YORK COUNTY CLERK 08mz019 12:16 P
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`NYSC3F DOC. NO. 155
`NYSCEF DOC. NO. 155
`
`INDEX NO. 110019/2004
`INDEX NO- 110019/2004
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`
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`R«C«IV«D VYSCEF: 08/01/2019
`RECEIVED NYSCEF: 08/01/2019
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`
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`Proceedings
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`I am prepared to do so this morning.
`
`So I would ask everyone to listen very carefully as
`
`I go through my determinations. And then when we're
`
`finished with that, we can talk about proceeding forward
`
`with the case.
`
`I am going to do this in the order of motion
`
`sequence number.
`
`So we will begin with motion sequence 009
`
`and conclude with motion sequence 019.
`
`I will begin with motion sequence 009.
`
`Motion sequence 009 consists of defendant Jeffrey
`
`M. Brown's motion to preclude evidence that might contravene
`
`the six determinations made in prior administrative and
`
`court proceedings.
`
`I will be referring to defendant Jeffrey M. Brown
`
`going forward as JMB, as you all have,
`
`to make things
`
`easier.
`
`I would like to quote the six determinations that
`
`were made during the prior administrative proceedings,
`
`the
`
`Department of Buildings,
`
`the Board of Standards and Appeals,
`
`and, of course, we all know there was an Article 78
`
`proceeding that came after that.
`
`I would like to quote what
`
`those six determinations were.
`
`Here's what
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`they were.
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`I am reading from the
`
`conclusion page of JMB's opposition papers, because it sets
`
`it forth very clearly.
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`\_/
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`FILED: NEW YORK COUNTY CLERK 08/01/2019 12:16 PM
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`NYSC3F DOC. NO. 155
`NYSCEF DOC. NO. 155
`
`INDEX NO. 110019/2004
`INDEX NO- “0019/2004
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`
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`
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`R«C«IV«D NYSCEF: 08/01/2019
`RECEIVED NYSCEF: 08/01/2019
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`Proceedings
`
`Number one,
`
`that no department inspector or
`
`engineer has observed that the premises is in actual and
`
`immediate danger of collapse. That's a quote from the
`hepartment of Buildings findings or prior administrative
`
`finding.
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`Next,
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`that there was no imminent danger of collapse
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`and that there was no vacate order for the building that was
`
`necessary.
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`Third, a finding that the owner appears to have
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`delayed repairs that could be made immediately out of a
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`desire to gut renovate the entire building which may not be
`
`required to remedy the existing cracks.
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`Fourth,
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`the board disagrees with appellant's claim
`
`that repairs cannot occur while the building is occupied.
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`The appellant, of course, being the plaintiff.
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`The fifth determination below,
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`that the building
`
`did not need to be vacated to preserve life and safety.
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`And, finally,
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`that the board understands that the
`
`owner of the premises has done nothing to remediate the
`
`conditions cited by the DOB on numerous occasions and
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`strongly urges the owner to take all necessary steps to make
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`indicated repairs.
`
`Now,
`
`that is my conclusion of a recitation of the
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`six determinations that underlie this particular motion in
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`limine. Again, it is the defendant JMB's motion to preclude
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`dk
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`\—/
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`
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`FILED: NEW YORK COUNTY CLERK 08/01/2019 12:16 PM
`FILED: NEW YORK COUNTY CLERK 08mz019 12:16 P
`
`NYSC3F DOC. NO. 155
`NYSCEF DOC. NO. 155
`
`INDEX NO. 110019/2004
`INDEX NO- 110019/2004
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`RfiCfiIVfiD VYSCEF: 08/01/2019
`RECEIVED NYSCEF: 08/01/2019
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`
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`Proceedings
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`evidence that might contravene any or all of those six
`
`determinations made during the administrative phase of
`
`proceedings between these parties.
`
`I would like to just note for the record that
`
`ultimately the DOB determined that as of April 2004,
`
`there
`
`was no basis for the department to vacate the premises.
`
`That's a quote.
`
`On appeal,
`
`the Board of Standards and Appeals
`
`affirmed that conclusion in December of 2004 by finding
`
`that, quote,
`
`the building was not
`
`in imminent danger of
`
`collapse and that the retaining wall at 7 Essex Street
`
`provided lateral support to the premises and that no vacate
`
`of the building was warranted at that time.
`
`We all know that
`
`n article 78 review,
`
`the
`
`£522“
`
`administrative conclusions were sustained.
`
`+k0*:
`
`With that preface,
`
`I would like to convey to all
`
`counsel the ruling of this Court is JMB's motion to preclude
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`is denied.
`
`I will now state why that is my conclusion.
`
`I want to thank JMB for a very scholarly and very
`
`well prepared motion. However,
`
`this Court disagrees with
`
`JMB's urging for application of collateral estoppel for the
`
`foregoing six administrative determinations.
`
`A seminal Court of Appeals case discussing the
`
`applicability of collateral estoppel of administrative
`
`proceedings is the case of Allied Chemical versus Niagara
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`\_/
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`FILED: NEW YORK COUNTY CLERK 08/01/2019 12:16 PM
`FILED: NEW YORK COUNTY CLERK 08mz019 12:16 P
`
`NYSC3F DOC. NO. 155
`NYSCEF DOC. NO. 155
`
`INDEX NO. 110019/2004
`INDEX NO- 110019/2004
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`R«C«IV«D VYSCEF: 08/01/2019
`RECEIVED NYSCEF: 08/01/2019
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`Proceedings
`
`7
`
`Mohawk Power Corp. That case can be found at 72 NY2d 271,
`
`cert denied, 488 US 1005.
`
`I would like to quote from that key Court of
`
`Appeals decision.
`
`And I quote,
`
`the elements necessary in all cases
`
`for issue preclusion are well known.
`
`It is required that an
`
`issue in the present proceeding be identical to that
`
`necessarily decided in a prior proceeding. And that in the
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`prior proceeding,
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`the party against whom preclusion is
`
`sought was accorded a full and fair opportunity to contest
`
`the issue.
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`While issue preclusion may arise from the
`
`determinations of administrative agencies,
`
`in that context,
`
`the doctrine is applied more flexibly and additional factors
`
`must be considered by the Court.
`
`These additional
`
`requirements are often summed up in the beguilingly simple
`
`prerequisite that the administrative decision be quasi
`
`judicial in character.
`
`I am now going to quote from a later paragraph in
`
`that Court of Appeals decision.
`
`Quote, Allied Chemical does not contest that it had
`
`a full and fair opportunity to controvert this issue before
`
`the PSC or suggest how procedurally the manner in which this
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`issue would be resolved by a Court would vary from the PSC's
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`determination, except for the different personages of the
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`\_/
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`FILED: NEW YORK COUNTY CLERK 08/01/2019 12:16 PM
`FILED: NEW YORK COUNTY CLERK cam-12019 12:16 P
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`NYSC3F DOC. NO. 155
`NYSCEF DOC. NO. 155
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`INDEX NO. 110019/2004
`INDEX NO- 110019/2004
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`RfiCfiIVfiD VYSCEF: 08/01/2019
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`decisionmakers.
`
`Proceedings
`
`Those quotes can be found at pages 276 through 278
`
`in the Court of Appeals decision.
`
`Now,
`
`I would like to comment on this.
`
`The Court
`
`in Allied Chemical did find it
`
`appropriate in that case for collateral estoppel effect to
`
`be afforded to the findings of the PSC.
`
`The PSC, of course,
`
`was the Public Service Commission involved in that case.
`
`However, one must recognize that in that case,
`
`the
`
`Court of Appeals expressly stated, quote,
`
`indeed,
`
`the PSC's
`
`rate making proceedings often involve formal hearings,
`
`complete with calling and cross examination of witnesses,
`
`and other adjudicative type safeguards, unquote.
`
`That is found at page 278 of the decision.
`
`I would like to address the lawyers before me.
`
`By contrast,
`
`there was no right of cross
`
`examination during the administrative proceedings underlying
`
`the instant case because those proceedings relied heavily on
`
`the DOB engineer's written report.
`
`In fact, plaintiff's counsel, during those
`
`proceedings, noted to the BSA, Board of Standards and
`
`Appeals,
`
`that, quote, it's impossible to cross examine a
`
`report, unquote.
`
`He noted that the DOB engineer who was the author
`
`of the report ought to be subject to cross examination, as
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`\./
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`FILED: NEW YORK COUNTY CLERK 08/01/2019 12:16 PM
`FILED: NEW YORK COUNTY CLERK 08mz019 12:16 P
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`NYSC3F DOC. NO. 155
`NYSCEF DOC. NO. 155
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`INDEX NO. 110019/2004
`INDEX NO- “0019/2004
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`R«C«IV«D VYSCEF: 08/01/2019
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`well as questioning by the BSA itself.
`
`Proceedings
`
`Absent the right of cross examination, which
`
`plaintiff's counsel prominently brought to BSA's attention,
`
`this Court is very reluctant to conclude that those
`
`proceedings and this plenary action are so procedurally
`
`identical as to characterize them as the same, except for
`
`the different personages of the decisionmakers,
`
`to coin the
`
`Court of Appeals phrase.
`
`I want to be completely thorough about this.
`
`This Court is very conscious of the Allied Chemical
`
`Court's mention of the fact that Allied Chemical did not
`
`seek Article 78 review of the PSC's determination in that
`
`case.
`
`I'm aware of that.
`
`Whereas,
`
`in the instant case, plaintiff did seek
`
`such review, which sustained the administrative
`
`determinations.
`
`I'm conscious of that.
`
`However,
`
`I say that a careful reading of that
`
`e
`
`decision, Allied Chemical does not compel
`
`the conclusion
`
`that the lack of Article 78 review over there was a key
`
`component
`
`in its analysis whether to afford PSC'S
`
`determinations collateral estoppel effect or not.
`
`Indeed,
`
`this Court would remind all here of what we
`
`already know to be fundamentally true about Article 78
`
`practice.
`
`They are extremely limited in their scope of
`
`review and based only on the heightened Article 78 standards
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`dk
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`FILED: NEW YORK COUNTY CLERK 08/01/2019 12:16 PM
`FILED: NEW YORK COUNTY CLERK 08mz019 12:16 P
`
`NYSC3F DOC. NO. 155
`NYSCEF DOC. NO. 155
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`INDEX NO. 110019/2004
`INDEX NO- 110019/2004
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`RECEIVED NYSCEF: 08/01/2019
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`Proceedings
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`10
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`of arbitrariness or capriciousness or the like as expressly
`
`delineated in Article 78.
`
`We ought not accord the underlying Article 78
`
`determination sustaining the DOB and BSA determinations the
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`same type of collateral estoppel effect that one might
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`afford to a de novo type of review in plenary fashion.
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`Indeed,
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`there ought not be collateral estoppel
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`effect.
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`It is a different standard. We are here embarking
`
`on a plenary jury trial to ascertain all issues that have
`
`been awaiting determination since 2004.
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`Additionally,
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`the Court of Appeals in Allied
`
`Chemical required another element to be found before
`
`collateral estoppel can obtain,
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`to wit, and I quote from the
`
`case, it is required that an issue in the present proceeding
`
`be identical to that necessarily decided in a prior
`
`proceeding.
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`That quote is found at page 276 of the decision.
`
`I now wish to address the attorneys.
`
`As plaintiff's counsel points out,
`
`the sole issue
`
`that was necessarily and exclusively before DOB and BSA was
`
`whether 11 Essex was in imminent danger of collapse so as to
`
`justify an administrative order mandating a complete vacatur
`
`of the building by its tenants.
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`This is in contrast to the present context of a
`
`plenary jury trial which will ultimately determine issues of
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`dk
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`FILED: NEW YORK COUNTY CLERK 08/01/2019 12:16 PM
`FILED: NEW YORK COUNTY CLERK 08mz019 12:16 P
`
`NYSC3F DOC. NO. 155
`NYSCEF DOC. NO. 155
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`INDEX NO. 110019/2004
`INDEX NO- “0019/2004
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`RfiCfiIVfiD VYSCEF: 08/01/2019
`RECEIVED NYSCEF: 08/01/2019
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`Proceedings
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`11
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`negligence or non—negligence, damages, and other issues
`
`raised by the current controversy that have been awaiting
`
`final determination since this case was filed in 2004.
`
`The proponent of collateral estoppel bears the
`
`burden to show identity of issues between the two
`
`proceedings.
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`You can find that principle stated by the Court of
`
`Appeals in Jeffries versus Griffin,
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`1 NY3d 2003.
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`I respectfully conclude, despite the very valiant
`
`effort,
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`that JMB has not met its burden in convincing this
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`Court that a collateral estoppel ought
`
`to apply to the prior
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`administrative proceedings.
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`Therefore,
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`the ruling of this Court is for sequence
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`009,
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`the motion to preclude is denied.
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`F_-J
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`Let us move on to motion sequence 010.
`
`This is another motion by defendant
`
`JMB.
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`It is to
`
`preclude evidence relating to 5 Essex Street.
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`5 Essex Street is not a party to this litigation.
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`I am advising all counsel I am granting this motion to
`
`preclude.
`
`I will now state on the record my reasons why.
`
`I will give a little background too.
`
`The construction project at issue in this action is
`
`located at 7,
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`9 and 9—1/2 Essex Street in Manhattan and is
`
`bordered to the south by 5 Essex Street and to the north by
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`11 Essex Street.
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`dk
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`\—/
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`
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`FILED: NEW YORK COUNTY CLERK 08/01/2019 12:16 PM
`FILED: NEW YORK COUNTY CLERK 08mz019 12:16 P
`
`NYSC3F DOC. NO. 155
`NYSCEF DOC. NO. 155
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`INDEX NO. 110019/2004
`INDEX NO- “0019/2004
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`Proceedings
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`12
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`By virtue of this in limine motion,
`
`JMB seeks to
`
`preclude plaintiff from presenting evidence at trial
`
`regarding certain damage and remediation to a wall
`
`located
`
`at 5 Essex on the grounds that that evidence would not be
`
`relevant and would be prejudicial.
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`Plaintiff opposes and argues that the evidence is
`
`admissible and relevant to the extent that, and I quote,
`
`to
`
`the extent that evidence is defendant's common modus
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`operandi and the manner in which it conducts its routine
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`business and practice, unquote.
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`You can find that quote in the opposition
`
`memorandum at page 2.
`
`In early November 2001 demolition of the then
`
`existing building at 7 Essex revealed the common wall
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`footing shared by 5 Essex and 7 Essex encroached
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`approximately one foot over 7 Essex property line.
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`The 100 year old rubble wall was structurally
`
`unstable and had substantial age and weather damage.
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`After the issues with the wall were discovered,
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`defendant ceased demolition of 7 Essex, and pursuant to an
`
`agreement with the owner of 5 Essex, rebuilt the wall and
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`related it to the correct side of the property line at the
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`project's expense.
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`Defendant contends that it did not know of the
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`condition of the wall prior to the demolition because of the
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`dk
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`\_t
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`FILED: NEW YORK COUNTY CLERK 08/01/2019 12:16 PM
`FILED: NEW YORK COUNTY CLERK 08mz019 12:16 P
`
`NYSC3F DOC. NO. 155
`NYSCEF DOC. NO. 155
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`INDEX NO. 110019/2004
`INDEX NO- 110019/2004
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`Proceedings
`
`13
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`result of an error in the pre—construction building site
`
`survey prepared by a property surveyor. That is what the
`
`defendant contends. And that the damage was not due to any
`
`work performed by defendants on the project. But that,
`
`rather,
`
`there were preexisting conditions that became
`
`apparent once the adjoining wall of 7 Essex was demolished.
`
`These are all positions of the defendant
`
`JMB.
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`Plaintiff does not dispute that the damage was not
`
`caused by the demolition, but alleges that there was no
`
`pre—construction condition survey, and argues that these
`
`events demonstrate that defendant failed to take proper
`
`precautions to protect adjoining structures prior to
`
`beginning the project.
`
`Now, let's talk about the law that applies to
`
`relevance.
`
`Generally, evidence of prior similar acts which are
`
`the types of acts that are intended to prove that a person
`
`did an act on a particular occasion, by showing that he did
`
`a similar act on a different unrelated occasion,
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`they would
`
`be admissible only if they would tend to establish motive,
`
`intent,
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`the absence of mistake or accident, a common scheme
`
`or plan, or identity.
`
`You can find those principles in many cases, one of
`
`which is the Court of Appeals case, Matter of Brandon,
`
`55 NY2d 206.
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`dk
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`\_/
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`FILED: NEW YORK COUNTY CLERK 08/01/2019 12:16 PM
`FILED: NEW YORK COUNTY CLERK 08mz019 12:16 P
`
`NYSC3F DOC. NO. 155
`NYSCEF DOC. NO. 155
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`INDEX NO. 110019/2004
`INDEX NO- 110019/2004
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`Proceedings
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`14
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`Now, plaintiff cites to a Court of Appeals case
`
`called Halloran versus Virginia Chemicals,
`
`found at
`
`41 NY2d 386,
`
`for the proposition that evidence of habitual
`
`behavior or custom is admissible as circumstantial proof
`
`that the habit was followed on the occasion in question.
`
`However,
`
`I would say that nonetheless the Court
`
`in
`
`Halloran specifically noted that an instance of only one
`
`prior similar act would not be admissible, noting, and I
`
`quote from the Halloran case,
`
`that a party must be able to
`
`show on voir dire to the satisfaction of the trial judge
`
`that he expects to prove a sufficient number of instances of
`
`the conduct
`
`in question, unquote.
`
`You can find that quote at 41 NY2d, page 392.
`
`To the extent the plaintiff seeks to admit evidence
`
`regarding 5 Essex to show habitual behavior or custom,
`
`the
`
`single instance of alleged habitual behavior is insufficient
`
`to warrant an exception to the general rule as specifically
`
`noted by the Court of Appeals in Halloran.
`
`Plaintiff alternatively argues that the 5 Essex
`
`evidence is admissible under the intent or common scheme or
`
`plan test set forth in Matter of Brandon.
`
`Under the intent test, evidence of other similar
`
`acts is admissible, not to prove the actual doing of the
`
`act, but rather to prove intent where no particular intent
`
`can be inferred from the nature of the act committed.
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`dk
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`\w/
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`FILED: NEW YORK COUNTY CLERK 08/01/2019 12:16 PM
`FILED: NEW YORK COUNTY CLERK 08mz019 12:16 P
`
`NYSC3F DOC. NO. 155
`NYSCEF DOC. NO. 155
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`INDEX NO. 110019/2004
`INDEX NO- “0019/2004
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`Proceedings
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`15
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`Under the common scheme or plan test, proof of
`
`similar acts is offered not
`
`to establish a particular
`
`intent, but to prove that the person did the act in issue.
`
`Now, under this test,
`
`the prior acts must be
`
`sufficiently connected with the act at issue such that each
`
`forms a part of a common plan on the part of the actor to
`
`achieve some ultimate result.
`
`The acts must have a direct
`
`connection.
`
`Now,
`
`I would say conflating the two tests
`
`articulated above, defendant argues that the evidence
`
`regarding 5 Essex is admissible to demonstrate its unlawful
`
`intent and/or common scheme or plan. And,
`
`I'm sorry,
`
`I
`
`didn't mean defendant.
`
`I meant plaintiff argues that the
`
`evidence regarding 5 Essex is admissible to demonstrate its
`
`unlawful intent and/or common scheme or plan; namely,
`
`JMB's
`
`complete disregard of its obligations under its contract and
`
`the like.
`
`In short, plaintiff seeks to introduce evidence
`
`regarding 5 Essex in order to prove that defendant
`
`disregarded its contractual and statutory obligations in
`
`order to complete the project more quickly.
`
`W
`However, plaintiff fails to demonstrate that,4
`
`5 Essex
`
`(7..
`evidence is admissible under either test set forth
`
`
`
`in Brandon or for the purpose that plaintiff seeks.
`
`First of all,
`
`the intent test is applicable to
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`dk
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`\_/
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`FILED: NEW YORK COUNTY CLERK 08/01/2019 12:16 PM
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`FILED: NEW YORK COUNTY CLERK 08mz019 12:16 P
`
`NYSC
`3F DOC. NO. 155
`NYSCEF DOC. NO. 155
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`INDEX NO. 110019/2004
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`Proceedings
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`16
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`scenarios where intent cannot be inferred from the evidence
`
`at hand, warranting the introduction of collateral evidence.
`
`WWserryk’”fiere, intent can be inferred from introduction of a
`
`
`
`contractual bonus provision and the nature of the acts
`
`committed at the project. And introduction of the
`
`information of collateral evidence regarding 5 Essex is
`
`therefore unwarranted.
`
`7%L/5 Essex/x’f””
`10 w////common scheme or plan test.
`
`eVidence is also inadmissible under the
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`Under this test, mere similarity is not sufficient
`
`and does not articulate a clear connection between the
`
`defendant's actions at 5 Essex and those at the project
`
`relating to this case.
`
`Plaintiff asserts that JMB disregarded its
`
`obligations to protect adjoining buildings during
`
`excavation. However,
`
`the damage at 5 Essex occurred during
`
`demolition, not excavation. Also,
`
`the events occurred
`
`several months apart.
`
`The issues did not relate to
`
`underpinning, which is one of the primary issues in this
`
`case. And the evidence indicates, plaintiff concedes that
`
`the damage at 5 Essex was the result of a preexisting
`
`condition.
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`Furthermore,
`
`the introduction of the complicated
`
`technical information regarding 5 Essex is likely to confuse
`
`dk
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`\_/
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`
`
`FILED: NEW YORK COUNTY CLERK 08/01/2019 12:16 PM
`FILED: NEW YORK COUNTY CLERK cam-12019 12:16 P
`
`NYSC3F DOC. NO. 155
`NYSCEF DOC. NO. 155
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`INDEX NO. 110019/2004
`INDEX NO- 110019/2004
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`Proceedings
`
`17
`
`the jury, would prolong the trial, with no corresponding
`
`advantage, and would necessitate a mini trial regarding
`
`collateral issues.
`
`For all of the foregoing reasons, it is my
`
`determination to grant JMB's motion to preclude evidence
`
`relating to 5 Essex Street.
`
`Let us move on now to motion sequence 011. That is
`
`defendant JMB's motion to preclude any reference to punitive
`
`damages.
`
`I am denying this motion.
`
`The reasons are as
`
`follows.
`
`I will give some background that relates to this
`
`as well.
`
`JMB argues that the plaintiff should be precluded
`
`from referring to punitive damages in its opening statement.
`
`Further,
`
`that the plaintiff should not be allowed to suggest
`
`an amount of punitive damages before the jury.
`
`Since a
`
`finding of liability of compensatory damages is a
`
`prerequisite for an award of punitive damages,
`
`the plaintiff
`
`should not be allowed to even refer to punitive damages
`
`before a determination of compensatory damages has been
`
`made. That's the argument. Allowing the plaintiff to
`
`mention punitive damages will prejudice the jury in its
`
`determination of causation and compensatory damages. Again,
`
`those are the defendant's arguments.
`
`Now, plaintiff opposes this motion and argues that
`
`dk
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`FILED: NEW YORK COUNTY CLERK 08/01/2019 12:16 PM
`FILED: NEW YORK COUNTY CLERK 08M2019 12:16 P
`NYSC 3F DOC. NO.
`155
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`Proceedings
`
`18
`
`it should not be precluded from referring to punitive
`
`damages in its opening statement.
`
`The cases cited by the defendant
`
`JMB are
`
`distinguishable from the case at bar.
`
`The cases cited were
`
`decided post trial to ascertain whether punitive damages
`
`would be sustainable in that case, whereas the case at bar
`
`relates to a motion in limine before trial.
`
`Furthermore, none of these cases cited by JMB hold
`
`that the mere mention of punitive damages in and of itself
`
`during the trial improperly inflames the jury and would
`
`result in substantial prejudice or undue prejudice.
`
`This Court does not agree that the mere mention of
`
`punitive damages would substantially prejudice the
`
`proceedings before the jury,
`
`thus warranting preclusion.
`
`First of all, although JMB is correct in saying
`
`that a finding of liability for compensatory damages is
`
`necessary before a demand for punitive damages could be
`
`made,
`
`this does not mean that the plaintiff is barred from
`
`any mention of the words punitive damages to the jury during
`
`trial or referring to the concept of punitive damages.
`
`Moreover,
`
`the cases cited by the defendant are not
`
`helpful to the defendant's position.
`
`Defendant cites to the case of Minichiello versus
`
`Supper Club, which be found at 296 AD2d 350, First
`
`Department, 2002.
`
`dk
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`\_/
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`FILED: NEW YORK COUNTY CLERK 08/01/2019 12:16 PM
`FILED: NEW YORK COUNTY CLERK 08mz019 12:16 P
`NYSC 3F DOC. NO.
`155
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`Proceedings
`
`19
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`JMB cites that case for support for the proposition
`
`that mentioning punitive damages prejudices the jury.
`
`In Minichiello, which was a case involving sexual
`
`orientation discrimination,
`
`the plaintiff's lawyer
`
`repeatedly made many, and I quote from the case, many
`
`irrelevant and highly prejudicial comments, unquote, which
`
`incited the jury, and, quote, prevented a fair and
`
`dispassionate consideration of the evidence, unquote.
`
`I say that this does not equate to me that
`
`mentioning punitive damages in this particular context of
`
`our case would substantially prejudice or substantially
`
`unduly prejudice the jury's decision—making process.
`
`Furthermore,
`
`the wealth of the defendant may be
`
`taken into consideration by the jury and, consequently,
`
`that
`
`could be mentioned to the jury when considering punitive
`
`damages.
`
`To that premise,
`
`I cite counsel to the cases of
`
`McIntyre versus Manhattan Ford, 256 AD2d 269, First
`
`Department, as well as Matter of 91st Street Crane Collapse:
`
`Litigation,
`
`found at 154 AD3d 139, First Department.
`
`For all the foregoing reasons, respectfully,
`
`this
`
`motion to preclude is denied.
`
`I move on to sequence 012. That again is a motion
`
`by the defendant
`
`JMB.
`
`That motion seeks to preclude plaintiff's expert,
`
`dk
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`FILED: NEW YORK COUNTY CLERK 08/01/2019 12:16 PM
`FILED: NEW YORK COUNTY CLERK 08m2019 12:16 P
`
`NYSC3F DOC. NO. 155
`NYSCEF DOC. NO. 155
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`110019/2004
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`20
`
`Mark Mediavillo,
`
`from testifying at trial.
`
`Proceedings
`
`Now, a rule 3101(d) expert witness disclosure was
`
`served by plaintiff back in October of 2018. That was
`
`preceded by a disclosure of May 2014, plus documentation
`
`pertinent thereto, amended disclosure of August 2014, plus
`
`more documentation pertinent thereto, and further
`
`supplementation in May 2015.
`
`Ladies and gentlemen,
`
`taking all those disclosures
`
`this CourELobserves that they all provide
`into account,
`information on Mr. Mediivilla's background, his credentials
`
`\
`
`in the field of real estate appraisal.
`
`They provide a
`
`statement of his expected testimony to the effect that in
`
`his opinion the diminution in value to 11 Essex is
`
`$2,550,000. And I recognize that's just his opinion, but he
`
`stated his opinion.
`
`They proffered bases for that opinion.
`
`Those disclosures are sufficient in this Court's
`
`determination.
`
`There is no prejudice that can be reasonably
`
`proffered by the defense at this time after the defense has
`
`had ample opportunity to digest all the foregoing
`
`disclosures.
`
`I would like to remind learned counsel for the
`
`defense that there is no right to depose an expert witness
`
`prior to trial.
`
`Now,
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`for him to suggest that the expert disclosure
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`dk
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`21 of 47
`21 of 47
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`10
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`11
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`12
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`13
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`14
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`15
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`16
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