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`INDEX NO. 601427/2017
`FILED: SUFFOLK COUNTY CLERK 10/04/2019 10:39 AM
`FILED :— SUFFOLK COUNTY CLERK 10M
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`NYSCEF DOC. NO. 125
`RECEIVED NYSCEF: 10/04/2019
`NYSCEF DOC. NO. 125
`'v
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`Short Form Order
`
`SUPREME COURT — STATE OF NEW YORK
`
`I.A.S. PART 7 — SUFFOLK COUNTY
`
`PRESENT:
`
`WILLIAM B. REBOLINI
`Justice
`
`
`Janet Barbash,
`
`‘
`
`Index No.: 601427/2017E
`
`Plaintiff,
`
`-against-
`
`Attorneys See Rider Annexed
`'
`
`.
`
`\
`
`\
`
`Motion Seguence No.: 004; MD
`Stephen Clarke, individually and d/b/a
`Motion Date: 2/26/ 19
`'
`Greenport Yacht & Shipbuilding Company,
`'
`Submitted: 3/20/19
`Defendants.
`i
`
`Motion Sequence No.: 005; MD
`Motion Date: 3/18/19
`Submitted: 3/20/19
`
`Stephen Clarke, individually and d/b/a
`Greenport Yacht & Shipbuilding Company,
`
`.
`
`Defendant/Third-Party Plaintiff, Motion Sequence No.: 006; MD
`Motion Date: 3/20/19
`
`-against-
`
`Submitted: 3/20/ 19
`
`Arthur Feld,
`
`Third-Party Defendant.
`
`
`Upon the E-file document list numbered 51 to 98 read on the application of defendant
`Stephen Clarke, individually and d/b/a Greenport Yacht & Shipbuilding Company for an order
`vacating the note of issue and compelling plaintiff to provide full responses to defendant’s third
`notice for discovery and inspection dated January 17, 2019 (Motion Sequence 004), on the
`application by plaintiff Janet Barbash for an order granting her summary judgment on the issue of
`liability (Motion Sequence 005), and on the application by defendant Stephen Clarke, individually
`and d/b/a Greenport Yacht & Shipbuilding Company for an order granting him partial summary
`judgment dismissing plaintiff‘s complaint and related relief (Motion Sequence 006); it is
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`INDEX NO. 601427/2017
`FILED: SUFFOLK COUNTY CLERK 10/04/2019 10:39 AM
`FILED: SUFFOLK COUNTY CLERK 10 m §‘
`""6
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`
`NYSCEF DOC. NO. 125.
`"
`R«.C«.IV«.D NYSCEF: 10/04/2019
`NYSCEF DOC. NO. 125
`RECEIVED NYSCEF: 10/04/2019
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`Barbash v. Clarke, et al.
`Index No.': 601427/2017_
`Page 2
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`ORDERED that the respective motions (Motion Sequences 004, 005, and 006) are
`consolidated for purposes of a determination herein; and it is further
`
`ORDERED that the motion by defendant/third-party plaintiff Stephen Clarke, individually
`and d/b/a Greenport Yacht & Shipbuilding Company for an order vacating the note of issue and
`compelling plaintiff to respond to discovery is denied; and it is further
`
`ORDERED that motion by plaintiff Janet Barbash for summary judgment in her favor is
`denied; and it is further
`.
`
`ORDERED that motion by defendant/third-party plaintiff Stephen Clarke, individually and
`d/b/a Greenport Yacht & Shipbuilding Company for an order granting him summary judgment
`dismissing the complaint is denied.
`
`Through the filing ofa summons Mid complaint on January 24, 2017, plaintiffJanet Barbash
`commenced this action seeking money damages for the alleged negligence of defendant /third-party
`plaintiffStephen Clarke (“defendant” or “Clarke”) d/b/a Greenport Yacht & Shipbuilding Company
`that resulted in property damages to plaintiffs yacht named “My Way.” The complaint alleges that
`on July 29, 2016 employees and/or agents of defendant were working on the plaintiffs yacht when
`an explosion and fire occurred causing substantial property damage to the yacht. Issue was joined
`on April 19, 2017 by the service of an answer with counterclaims. Plaintiff served her reply to the
`counterclaims on May 15, 2017. It is not disputed that employees of defendant were performing
`work on the yacht when the fire began. Defendant asserts a third-party claim against third-party
`defendant Arthur Feld (“Feld”), the brother-in-law ofplaintiff, seeking indemnification. It is alleged
`by defendant that Feld used and maintained the yacht and requested defendant’s employees to pump
`the yacht’s bilges, that Feld did not prevent gasoline from entering the yacht, and that Feld failed to
`warn defendant and his employees that such gasoline was improperly contained. Defendant also
`asserts counterclaims against plaintiff seeking payment for the storage of the yacht.
`
`At the compliance conference held on January 16, 2019, the parties entered into a so-ordered
`stipulation permitting defendant to serve supplemental discovery demands by January 30, 2019, to
`which plaintiff was to provide responses before filing the note of issue. On January 17, 2019,
`counsel for defendant served a third notice for discovery and inspection upon plaintiff which
`demanded the production of any documents, correspondence, e-mails, text messages, memoranda,
`notes, reports, or other documents exchanged between plaintiffand Feld concerning the claims and
`defenses made in this case. A response to defendant’s demands dated January 22, 2019 was served
`on behalf of plaintiff. The response states, among other things, that plaintiff objects to family
`conversations or interactions as being irrelevant and immaterial. It also states that plaintiff objects
`to all documents that are privileged and prepared in anticipation of litigation.
`-
`
`Defendant now moves for an order vacating the note of issue and compelling plaintiff to
`respond to the third notice for discovery and inspection. Specifically, defendant contends that Feld
`was provided with correspondence from his counsel, which was then forwarded to plaintiff.
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`NYSC.
`3F DOC. NO. 125
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`Barbash v. Clarke, et al.
`Index No: 601427/2017
`Page 3
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`Defendant further argues that the letter is relevant to this case and that plaintiffhas failed to produce
`same.
`
`Plaintiff opposes the motion, arguing that the letter is protected by the attomey-client
`privilege and not discoverable. While plaintiffacknowledges that the privilege can be waived when
`there is a voluntary disclosure to a third person, plaintiff contends that the parties have a common
`interest and thus, the letter remains privileged. Feld also opposes the motion, arguing that the
`correspondence constitutes attorney work-product and is not discoverable. Specifically, it is argued
`that the letter contains an analysis ofwhat Feld’ s counsel believed would unfold at trial and how that
`outcome should be taken into consideration when contemplating settlement. Counsel for Feld
`further argues that the letter is protected by the attorney-client privilege. In support of his motion,
`Feld submits his own sworn affidavit, wherein he avers that he has never shared the letter from his
`attorney nor discussed its contents with any third-party.
`'
`
`Plaintiff moves for summary judgment in her favor, arguing that the doctrine of res ipsa
`loquitur applies in this case and that the yacht was in the exclusive possession and control of
`defendant.
`In support of the motion, plaintiff submits copies of the pleadings, transcripts of the
`parties” deposition testimony, reports from Occupational Safety and Health Administration (OSHA),
`and a damage loss report of John Lowe.
`
`Defendant cross-moves for summaryj udgment dismissing the complaint against him and for
`summary judgment1n his favor as to his counterclaim Defendant also opposes plaintiff’s motion
`for summary judgment Defendant argues that there13 no genuine dispute that a fuel leak caused the
`subject fire and that he had no duty to plaintiff, as the yacht was merely stored at the yard In support
`of the cross motion and in opposition to plaintiff’s motion, defendant submits copies of the
`pleadings, transcripts ofthe parties’ deposition testimony, and affidavits of defendant’s employees.
`
`At his examination before trial, defendant testified that he is the owner of Greenport Yacht
`& Shipbuilding Company and that the subject yacht was being stored at his boatyard at the time of
`the incident. He testified that third-party defendant winterized the boat and that neither he nor his
`employees did work on the boat. He testified that third-party defendant said that he would do all the
`work on the boat and only requested that the boat be hauled to the yard, power-washed, and placed
`on blocks. He testified that a few days before the incident when Feld asked him to pump water out
`of the boat, he did not mention that there were gas fumes. He also testified that Feld informed him
`that the boat cover was off, which he already knew, as it came offwithin a few weeks of Feld putting
`it on. Defendant further testified that a few days before the incident, he instructed his employees to
`pump water out ofthe boat and to use chemical cleaners to clean the scum line. Defendant testified
`that two electric bilge pumps were used to pump water out ofthe engine room. He testified that his
`employees told him while they were pumping water, there was a flash throughout the engine area
`and a fire was ignited. He testified that after the fire, OSHA conducted an inspection and issued
`violations for using a receptacle outlet without a ground fault circuit interrupter protector, and for
`using a pump energized to an extension cord which was missing a ground pin, Defendant testified
`that the violations were unrelated to the cause ofthe fire, as the ground lug that was missing was not
`
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`INDEX NO. 601427/2017
`FILED: SUFFOLK COUNTY CLERK 10/04/2019 10:39 AM
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`FILED: SUFFOLK COUNTY CLERK 10M
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`NYSCEF DOC. NO. 125
`RECEIVED NYSCEF: 10/04/2019
`NYSCEF DOC. NO.
`‘125
`., R<.C«.IV«.D NYSCEF: 10/04/2019
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`Barbash v. Clarke, et al.
`Index No.: 601427/2017
`Page 4
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`a current carrying conductor. He explained that because there was no current flowing through it,
`there would not have been a spark, but he did not know what ignited the fire. He testified that he
`believes an internal spark inside the pump may have caused the fire.
`
`At his examination before trial, Feld testified that he sold the subject boat to plaintiff, his
`sister-in-law, in 2013,,but that he continued to use and maintain the boat. He testified that he started
`storing the boat at defendant’ 5 boatyard in the winter of20 1 3 for $1,200, which included hauling and
`blocking the boat. He testified that he would winterize the boat before storing it, which included
`pumping antifreeze through the engines, disconnecting the batteries, and placing a canvass cover
`over the boat. He testified that defendant was not responsible for maintaining the boat during the
`winter, but that he was told that defendant’s employees would walk around the boatyard to “check
`on things.” He testified that in August of 2016, he asked his friend, Joseph Ambrose (“Ambrose”),
`to show the boat to a prospective buyer while he was away in Florida. He testified that Ambrose
`contacted him and told him that the cover of the boat was off, that there was water in the boat, and
`that there was a smell of gasoline fumes. He further testified that when he winterized the yacht in
`the Fall of 2013, there were no leaks in the fuel system at that time.
`
`At his examination before trial, Ambrose testified that in August of 2016, Feld asked him to
`show the boat to a prospective buyer. He testified that when he arrived at the boat, he observed that
`the cover was in disrepair and only remnants of it remained. He testified that when he opened the
`door to the boat, he observed “a film on the two lower decks” and water in the boat. He explained
`that he believed the film to be gasoline as he also smelled gasoline fumes. He testified that he
`contacted third—party defendant to tell him the situation, but did not speak to any employees at the
`boatyard.
`’
`
`At his examination before trial, John Lombardi testified that he accompanied Ambrose to the
`boat in August of 2016 and observed the canvass ripped from the boat due towind. He testified that
`he smelled gasoline and did not enter the boat.
`
`George Van Etten (“Van Etten”), an employee ofGreenport Yacht & Shipbuilding Company,
`avers in his swom affidavit that he is a fireman with 28 years of experience. He alleges that he was
`aboard the yacht on July 28 and July 29, 2016, and that it was open and vented. He further alleges
`that on July 28, 2016, there was approximately three to four feet of water inside the yacht and that
`it went over the top of the engines, covering approximately eight feet of the bottom of each of the
`, yacht’s two gas tanks. He alleges that he did not smell gasoline fumes aboard the yacht and did not
`see gasoline in the yacht’s bilge water. He further alleges that no one told him that there was a smell
`of fumes on the yacht prior to the fire. He avers that on the day ofthe fire, the workers used a pump,
`with a suction hose and discharge hose, and moved the suction hose around the bilge to remove
`water while the pump remained above water. He alleges that during de-watering near the empty
`battery boxes, it appeared that additional water, possibly rain water, flowed from the aft section of
`4 of 8
`the yacht. He alleges that a flash occurred aflthé? émcg He further alleges that it was later discovered
`that nnP nf the dpnk drain: on the vacht was broken. permitting water to enter its interior.
`
`

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`INDEX NO. 601427/2017
`FILED: SUFFOLK COUNTY CLERK 10/04/2019 10:39 AM
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`NYSC.
`3F DOC. NO. 125
`c«.IV«D NYSCEF: 10/04/2019
`NYSCEF DOC. NO. 125
`RECEIVED NYSCEF: 10/04/2019
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`Barbash v. Clarke, et a1.
`Index No.: 601427/2017
`Page 5
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`The sworn affidavits of Thomas Bernhardt III and Susano Jimenez, also employees of
`Greenport Yacht & Shipbuilding Company, are virtually identical to the sworn affidavit of Van
`Etten.
`
`In regards to defendant’s motion to vacate the note of issue and compel discovery from
`plaintiff, it is well established that parties to litigation are entitled to “full disclosure of all evidence
`material and necessary in the prosecution or defense of an action, regardless of the burden ofproof”
`(CPLR 3101[a]). This provision has been liberally construed to require disclosure “of any facts
`bearing on the controversy which will assist [the parties’] preparation for trial by sharpening the
`issues and reducing delay and prolixity” (Allen v Crowell-CollierPubl. Co., 21 NY2d 403, 406, 288
`NYSZd 449 [1968]). “If there is any possibility that the information is sought in good faith for
`possible use as evidence-in—chief or in rebuttal or for cross-examination, it should be considered
`‘evidence material .
`.
`. in the prosecution or defense’” (Allen v Crowell-Collier Publ. Co., 21 NY2d
`403,407,288 NYS2d 449, quoting Matter of Comstock 21 AD2d 843,844,250 NYS2d 753 [4th
`Dept 1964]). Nonetheless, litigants do not have carte blanche to demand production of any
`documents or other tangible items that they speculate might contain useful information (see
`Breytman v Olinville Realty, LLC, 99 AD3d 651, 952 NYS2d 205 [2d Dept 2012]; Gejfner vMercy
`Med. On, 83 AD3d 998, 922 NYS2d 470 [2d Dept 201 1]; Foster vHerbert Slepoy Corp., 74 AD3d
`1139, 902 NYS2d 426 [2d Dept 2010]; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531, 845 NYSZd
`124 [2d Dept 2007]), and a party will not be compelled to comply with disclosure demands that are
`unduly burdensome, lack specificity, seek privileged material or irrelevant information, or are
`otherwise1mproper (see Ural v Encompass Ins. Co ofAm 97 AD3d 562,948 NYS2d 621 [2d
`Dept 2012]; Accent Collections, Inc. v Cappelli Enters Inc, 84 AD3d 1283, 924 NYS2d 545 [2d
`Dept 201 1]; Gonzalez vInternattonalBus Mac/1s. Corp., 236 AD2d 363, 654NYS2d 327 [2d Dept
`1997]; Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420 [2d Dept 1989]).
`
`Moreover, CPLR 3101 (c) creates an absolute privilege for the work-product of an attorney
`(Spectrum Sys. Intl Corp. v Chemical Bank, 78 NY2d 371, 376,575 NYS2d 809). Although
`“designed to permit the attorney to communicate freely and candidly with his [or her] client
`uninhibited by any concern that his [or her] communications will be available to his [or her] client’s
`adversaries” (Beasock v Dioguardi Enters. 117 AD2d 1016, 1016, 499 NYS2d 560 [4th Dept
`1986]), the attorney work-product privilegelS narrowly construed to include only that material
`preparedin an attorney’ 5 professional capacity and which necessarily involved his or her learning
`and professional skills (see Bloss v Ford Motor Co., 126 AD2d 804, 510 NYS2d 304 [3d Dept
`1987]; Hoffman v Ro-San Manor, 73 AD2d 207, 425 NYSZd 619 [lst Dept 1980]). Thus, the
`attorney work-product doctrine essentially shields from disclosure written materials involving
`“interviews, statements, memoranda, correspondence, briefs, mental impressions, and personal
`beliefs” produced by an attorney (Hickman v Taylor, 329 US 495, 511, 67 S Ct 385 [1947]; see
`Corcoran v Peat, Marwick, Mitchell & Co., 151 AD2d 443, 542 NYS2d 642 [lst Dept 1939] ).
`
`Here, it is undisputed that the letter sought by defendant’s counsel is a letter which counsel
`for third-party defendant Feld presented to his client and concerns third-party Feld’s exposure in this
`case and the risks associated with proceeding to trial. This letter, allegedly given to plaintiffby Feld
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`INDEX NO. 601427/2017
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`NYSC.
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`Index No.: 601427/2017
`Page 6
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`is protected from disclosure by the work-product privilege (see Ambac Assur. Corp. v DLJ Mtge.
`Capital, Inc., 92 AD3d 451, 939 NYS2d 333 [lst Dept 2012]). Contrary to the assertion of
`defendant’s counsel, even if is determined that Feld shared the letter with plaintiff, the work-product
`privilege has not been waived (see People v Kozlowski, 11 NY3d 223, 869 NYS2d 848 [2008];
`Bluebird Partners, LP. v First Fid. Bank, NA, 248 AD2d 219, 671 NYS2d 7 [lst Dept 1998]).
`Moreover, the letter prepared by Feld’s attorney, which relates to trial strategy, is not relevant to the
`issues in dispute in this case. Accordingly, defendant’s motion to vacate the note of issue and to
`compel further discovery from plaintiff is denied.
`
`With regard to motions for summary judgment, it is well established that the movant bears
`the initial burden and must tender evidence sufficient to eliminate all material issues of fact (see
`Winegrad vNew York Univ. Med. On, 64 NY2d 851, 487 NYS2d 316 [1985]). Once the movant
`meets this burden, the burden then shifts to the opposing party to demonstrate that there are material
`issues of fact; however, mere conclusions and unsubstantiated allegations are insufficient to raise
`any triable issues of fact (see Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595
`[1980]; Perez v Grace Episcopal Church, 6 AD3d 596, 774 NYS2d 785 [2004]). The court’s
`function is to determine whether issues of fact exist, not to resolve issues of fact or to determine
`matters of credibility; therefore, in determining the motion for summary judgment, the facts alleged
`by the opposing party and all inferences that may be drawn are to be accepted as true (see Roth v
`Barreto, 289 AD2d 557, 735 NYS2d 197 [2001]; O’Neill v Town ofFishkill, 134 AD2d 487, 521
`NYS2d 272 [1987]),
`
`Here, triable issues of fact remain as to what caused the subject fire and whose conduct was
`the proximate cause of the fire. Res ipsa loquitur allows for an inference of negligence to be drawn
`regarding a defendant’s actions based upon the happening of an event where the plaintiff can
`establish that the event is of a type which would not ordinarily happen in the absence of someone’s
`negligence, was caused by an agent or instrumentality exclusively within the defendant’s control,
`and was not due to any voluntary action or contribution on the plaintiff s behalf (see Kambat v St.
`Francis Hosp., 89 NY2d 489, 655 NYS2d 844 [1997]; Dermatossian v New York City
`Transportation Authority, 67 NY2d 219, 501 NYS2d 784 [1986]; Prosser and Keeton, Torts § 39
`at 248-251). In the instant matter, plaintiff failed to establish that the yacht was under defendant’s
`exclusive control (see Pintor v 122 Water Realty, LLC, 90 AD3d 449, 933 NYS2d 679 [2d Dept
`2011]; Sowa v S.J.N.H. Realty Corp., 21 AD3d 893, 800 NYS2d 749 [2d Dept 2005]). While the
`yacht was stored at defendant’s boatyard, others had access to the boat, including Feld, who
`maintained it.
`In addition, plaintiff failed to submit sufficient evidence to demonstrate that the
`actions of Feld did not contribute to the happening of the accident. Thus, plaintiff’s motion for
`summary judgment in her favor is denied.
`
`The motion by defendant for summary judgment in his favor is also denied. Defendant
`contends that it is undisputed that the fire was caused by a fuel leak and that Feld was responsible
`for maintaining the yacht, He fiirther argues that the yacht was merely stored at his boat yard and
`that he did not have notice or a duty to discover the fuel leak. However, defendant failed to establish
`that the conduct ofhis employees while removing water from the yacht did not contribute to the fire.
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`INDEX NO. 601427/2017
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`NYSC.
`3F DOC. NO. 125
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`Barbash v. Clarke et al.
`Index No.: 601427/2017
`Page 7
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`Moreover, while defendant testified that Feld did not inform him that there were possible gas fumes
`on the yacht, Feld testified that he told defendant that there were gas fumes present, Thus, the
`conflicting deposition testimony as to whether defendant and his employees had notice of gas fumes
`on the yacht prior to the incident raises issues of credibility which may not be resolved on a summary
`judgment motion (see Ahr v Karalewski, 48 AD3d 719, 853 NYSZd 172 [2d Dept 2008]; Gordan
`v Honig, 40 AD3d 925, 837 NYS2d 197 [2d Dept 2007]; Kalivas v Kirclmff, 14 AD3d 493, 787
`NYS2d 392 [2d Dept 2005]), Furthermore, contrary to defendant’s contentions, the unsigned but
`certified deposition transcripts, which were submitted in support of plaintiff s motion for summary
`judgment, were admissible under CPLR 3116(a), as the transcripts were submitted by the party
`deponent himself and, therefore, were adopted as accurate (see Rodriguez v Ryder Truck, Inc., 91
`AD3d 935, 937 NYS2d 602 [2d Dept 2012];Asl1ifv Wan 0k Lee, 57 AD3d 700, 868 NYS2d 906
`[2d Dept 2008]).
`
`Dated; m/z/zfl/y
`
`]%7 .' géé é
`
`HON. WILLIAM B. REBOLINI, J.S.C.
`
`,.
`
`FINAL DISPOSITION
`
`X
`
`NON-FINAL DISPOSITION
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` * IVfiD NYSCI
`NYSCEF DOC. NO. 125
`NYSCEF DOC. NO. 125
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`RIDER
`
`Clerk of the Court
`
`Attorney for Plaintiff:
`
`John H. Mulvehill, Esq.
`220 Cambon Avenue
`St. James, NY 11780
`
`
`Attomg' for Defendant/Third-Par_ty Plaintiff
`Stephen Clarke individually and d/b/a
`as Greennoport Yacht & Sh_1pbuilding_Compang:
`
`Betancourt, Van Hemmen, Greco & Kenyon, LLP
`48 Trinity Place
`New York, NY 10006
`
`Attorney for Third-Pm Defendant Arthur-Feld:
`
`Elliott S. Small, Esq. '
`5020 Sunrise Highway
`Massapequa Park, NY 11762
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