New York State Court of Claims

New York State Court of Claims

TOWER v. THE STATE OF NEW YORK, #2008-044-571, Claim No. 112760, Motion Nos. M-74146, CM-74182, CM-74305


Synopsis


The Court conducted an camera review of an accident report concerning the collapse of Interstate Highway 88 (I-88) over a culvert, and redacted the portions thereof which contain the “mental impressions, conclusions and opinions” of its author which are subject to privilege under CPLR 3101 (d) (2).

Case Information

UID:
2008-044-571
Claimant(s):
TOWER INSURANCE COMPANY OF NEW YORK, a/s/o M&K, LLC
Claimant short name:
TOWER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112760
Motion number(s):
M-74146
Cross-motion number(s):
CM-74182, CM-74305
Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
D’AMBROSIO & D’AMBROSIO, P.C.BY: Frank G. D’Esposito, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 5, 2008
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)
2008-044-572, 2008-044-573, 2008-044-574, 2008-044-575


Decision

These claims[1] have been brought to recover for the wrongful death of two people and for property loss, all arising out of flooding and the subsequent collapse of Interstate Highway 88 (I-88) over a culvert[2] at Carr’s Creek near Unadilla, New York on June 28, 2006 (the Collapse). In response to the Collapse, defendant prepared an accident report entitled “Interstate 88 Over Carrs Creek Pipe Failure / Forensic Failure Analysis: Structural, Geotechnical and Hydrological” (the Report). Claimants moved to compel production of the Report. The Court ordered defendant to produce the Report to the Court for an in camera review, on the ground that the Report was prepared - at least in part - in the ordinary course of defendant’s business (Tower Insurance v State of New York, Ct Cl, June 23, 2008, Schaewe, J., Claim No. 112760, Motion Nos. M-74146, CM-74182, CM-74305 [UID # 2008-044-550]).

The Court has conducted its in camera review of the Report, and has redacted the portions thereof which contain the “mental impressions, conclusions and opinions” of its author, defendant’s representative, which are subject to privilege under CPLR 3101 (d) (2) (see Blakesley v State of New York, 244 AD2d 947 [1997]; Wylie v Consolidated Rail Corp., 198 AD2d 884 [1993]).

Defendant is directed to provide copies of the Report, as it has been redacted by the Court, to claimants’ counsel within 15 days of the date of filing of this Decision and Order.

The Chief Clerk of the Court is directed to seal and preserve the original copy of the Report provided by defendant to the Court for this in camera inspection in the event of possible appellate review.

September 5, 2008
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following document was read on this in camera review:

1) Defendant’s accident report entitled “Interstate 88 Over Carrs Creek Pipe Failure / Forensic Failure Analysis: Structural, Geotechnical and Hydrological”.


[1]. The Court, with the consent of the parties, has ordered that the claims be joined for purposes of discovery and trial due to their foundation in the same set of facts.
[2]. Although the structure is technically a culvert from an engineering standpoint, it is also defined as a bridge pursuant to Highway Law § 230.