The owner of a leaning building commenced this action alleging, among other things, that the Department of Buildings of the City of New York unjustly ordered the building to be vacated to facilitate and expedite excavation and blasting operations taking place in connection with the construction of the Second Avenue subway line. [*2]By decision and order dated September 28, 2010, this Court granted the City's motion to dismiss the action as against the City of New York, which was affirmed.

While the appeal was pending, plaintiff served three deposition notices and a second notice for discovery and inspection. The remaining defendants now move for a protective order quashing the deposition notices, and plaintiff cross moves to compel the remaining defendants to produce documents responsive to plaintiff's second notice for discovery and inspection.

The background allegations were set forth in this Court's prior decision and order dated September 28, 2010. Plaintiff is the alleged fee owner of real property and a building thereon located at 1766-68 Second Avenue in Manhattan. According to the complaint, two old law tenement style buildings, dating from the late 19th Century, that sit on the property were renovated and combined about 25 years ago into the single building at issue in this action. The north wall of the building is allegedly not plumb; the top of the building allegedly leans approximately 18 inches.

The construction of the new Second Avenue subway line allegedly takes place near the building. The Metropolitan Transportation Authority (sued herein as the Metropolitan Transit Authority), New York City Transit Authority, and MTA Capital Construction (collectively, the MTA defendants) allegedly notified the City's Department of Buildings (DOB) of their concern that drilling, excavation, and/or blasting as part of the construction could raise structural stability issues in the building due to its leaning condition.

Plaintiff claims that the building was not in any danger of immediate collapse, except as might be caused by excavation and blasting in connection with the construction of the Second Avenue subway line. Plaintiff alleges that, on June 9, 2009, it received an emergency declaration from DOB, advising plaintiff to "Stabilize the building by proper bracing and shoring."^[FN1] DOB representatives allegedly met with plaintiff's engineer and with plaintiff's counsel on June 26, 2009, but on June 29, 2009, DOB allegedly issued a Peremptory Vacate Order. DOB agents allegedly vacated the building of occupants, locked the building, and erected scaffolding around the building. Plaintiff asserts that it initially developed, in conjunction with [*3]DOB, a plan to reinforce the structural stability of the building, which was allegedly reviewed with DOB engineers and allegedly modified in response to those concerns.

Plaintiff alleges that it was forced and coerced into allowing MTA Capital Construction (MCC) and its contractor, defendant S/3 Tunnel Constructors (S3) to perform the plan that plaintiff initially developed. Plaintiff allegedly entered into an access agreement with MCC on September 18, 2009, pursuant to which MCC allegedly agreed to perform, at its own expense, the plan. According to plaintiff, the plan involves detailed monitoring of the movement of the building and vibrations within the building resulting from blasting in front of, and adjacent to, the building. Plaintiff claims that MCC provided and shared the monitoring data with plaintiff and its engineers, but allegedly stopped sharing the data around December 2009.

In addition, plaintiff contends that DOB should have required the MTA defendants to protect, underpin and/or stabilize its building as a condition of excavation and blasting adjacent to the building, citing Sections BC 3309.4, BC 3309.4.1 and BC 3309.5 of the 2008 Building Code of the City of New York.

The complaint asserts six causes of action against defendants. The first cause of action asserts that defendants should be responsible for payment of the costs of preserving and protecting plaintiff's building pursuant to Sections BC 3309.4, BC 3309.4.1 and BC 3309.5. The second cause of action seeks a mandatory and permanent injunction directing MCC to provide all monitoring data to plaintiff on an ongoing basis. The third cause of action alleges that defendants conspired to take plaintiff's property without paying fair compensation. The fourth cause of action alleges that defendants' actions constitute abuse of process, while the fifth alleges that defendants' actions constitute a prima facie tort. Finally, plaintiff purports to assert a sixth cause of action, that defendants' actions constitution "violations of the common law of the State of New York and basic principles of equity."

By decision and order dated September 28, 2010, this Court granted the City's motion to dismiss the complaint as against the City of New York, which was affirmed. (1766-68 Associates, LP v City of New York, 91 AD3d 519 [1st Dept 2012].) The Appellate Division stated, in pertinent part:

"No liability lies against the City for its discretionary decisions relating to issuing orders, directives, permits, or the like even where the Code allows it to do so.

The cause of action alleging a violation of the Takings Clause (U.S. Const., 5th Amend; NY Const. art. I, § 7), was also properly dismissed. Plaintiff does not allege that the City's issuance of the Emergency Declaration and Vacate Order forever [*4]deprived plaintiff of all of the building's economic use. More critically, the motion court correctly held that no compensation was due under the Takings Clause, as compensation is not required where the government acts to prevent an impending danger emanating directly from the use or condition of the property.'

Insofar as the complaint alleges that the City conspired with the MTA to deprive plaintiff of its property rights, such claim fails to state a cause of action since civil conspiracy has not been properly pleaded. . .

We have considered plaintiff's remaining contentions and find them unavailing."

(Id. at 520 [internal citations omitted].)

Meanwhile, plaintiff served notices to depose Dr. Michael Horodniceanu, the president of the MTA, William E. Goodrich, and Anil Parikh. (Berman Affirm., Ex C.) Plaintiff also served a second notice for discovery and inspection dated February 3, 2011, seeking twenty categories of documents. (Hefelfinger Aff., Ex A.) The MTA defendants objected to every demand on the grounds of overbreadth, ambiguity, and "irrelevant and beside the point pursuant to the order of this court by the Honorable Michael Stallman dated September 28, 2010." Except as to the first item, which sought DOB reports from the MTA defendants, the MTA defendants also objected on the ground of "qualifiedly privileged material." (Hefelfinger Aff., Ex B.)

Here, plaintiff contends that Horodniceanu discussed issues involving the building with plaintiff's counsel between the time that DOB issued its vacate order and the time that blasting began in front of the plaintiff's building. (Hefelfinger Aff. ¶ 10.) Plaintiff asserts that Horodniceanu "will likely have information as to policy [*5]decisions and communications between the MTA Defendants, on one hand, and the DOB and/or City of New York, on the other hand, which no other representatives of the MTA Defendants likely have or have access to." (Id.) As to Parikh and Goodrich, plaintiff asserts that, "upon information and belief, both of these individuals were actively involved in the engineering and blasting issues which are central to the plaintiff's claims."

However, the MTA defendants correctly indicates that, in the first instance, plaintiff is not entitled to depositions of three individual from the MTA. "[I]t is well established law in this State that a corporation, including a municipal or public corporation, can generally, in the first instance designate which of its employees will represent it for the purposes of pretrial depositions." (Faber v. New York City Tr. Auth., 177 AD2d 321, 322 [1st Dept 1991] [internal quotation marks and citation omitted]; Mangual v New York City Tr. Auth., 48 AD3d 212 [1st Dept 2008]["Defendant was not obligated in the first instance to produce a witness of plaintiff's choosing for deposition"].)

"Only when the plaintiff establishes that the knowledge of the proffered official is insufficient to produce testimonial and documentary evidence "material and necessary" to the prosecution of the action, as provided in CPLR 3101(a), may the court grant a motion for the production of additional witnesses. Further, a party seeking to depose additional witnesses must make a detailed showing of the necessity for taking such depositions."

Turning to plaintiff's cross motion, the MTA defendants argue that, among other things, the documents sought in plaintiff's second notice for discovery and inspection are irrelevant, or not reasonably calculated to lead to admissible evidence as to the issues in this action.

The Appellate Division's affirmance of this Court's decision and order granting dismissal of the action as against the City narrowed the scope of discovery. Although the MTA defendants did not join in the City's motion to dismiss, certain causes of action were ruled legally insufficient. For example, the Appellate Division stated that plaintiff's claim of conspiracy in the third cause of action "fails to state a cause of [*6]action since civil conspiracy has not been properly pleaded." (1766-68 Associates, LP, 91 AD3d at 520.) As to the fourth cause of action, which asserts abuse of process, this Court stated in the prior decision and order that the cause of action was legally insufficient because "the complaint lacks the allegations that plaintiff was issued judicial process." As to the sixth cause of action, this Court also indicated, "This purported cause of action is, in essence, a catch-all category, which the law does not recognize."

Finally, given that the Appellate Division ruled that "No liability lies against the City for its discretionary decisions relating to issuing orders, directives, permits, or the like even where the Code allows it to do so" (1766-68 Associates, LP, 91 AD3d at 520), the first cause of action no longer asserts a viable theory of liability to hold the remaining defendants liable under Sections BC 3309.4, BC 3309.4.1 and BC 3309.5 of the 2008 Building Code.

Thus, the only remaining causes of action that are arguably viable are the second and fifth causes of action.

The second cause of action seeks a permanent injunction directing MCC to provide plaintiff, on an ongoing basis, with monitoring data about the movement and vibration within plaintiff's building. Except as to item 20 of plaintiff's second notice for discovery and inspection, much of the discovery sought is not relevant or reasonably calculated to the lead to admissible evidence for this cause of action. As to item 20, which demands for all records of movement of the Property as a result of blasting," plaintiff is attempting to obtain the ultimate relief under the guise of discovery.

As to the fifth cause of action, "[p]rima facie tort requires a showing of intentional infliction of harm, without excuse or justification, by an act or series of acts that would otherwise be lawful, resulting in special damages." (Kaisman v Hernandez, 61 AD3d 565, 566 [1st Dept 2009].) Here, plaintiff asserts that the MTA defendants communicated to the DOB with the intent to cause DOB to issue an emergency declaration and a vacate order, which thereby harmed plaintiff. Therefore, with respect to this cause of action, discovery concerning the MTA defendants's actions, intent, excuses or justifications should be limited to the period prior to DOB's issuance of the emergency declaration and the vacate order.

Thus, the MTA defendants' objections to items 1, 18, and 19 are sustained as irrelevant and not reasonably calculated to the lead admissible evidence as to this cause of action. These items sought discovery concerning the condition of plaintiff's building and the communications between the MTA defendants and DOB for the period beginning from June 29, 1999. [*7]

Plaintiff has not demonstrated entitlement to the discovery sought by items 12, 14, and 15, which concern stabilization work performed at other properties, and tenant relocations for other properties, along Second Avenue between East 80th and 100th Streets.

Items 8, 9, 11, and 13 seek discovery from the MTA defendants concerning the cost and payments for the costs of stabilizing and underpinning plaintiff's building, and reports discussing or referring to stabilization work performed at the property. Item 10 seeks requests for proposals, bids, contracts, and other agreements entered into by any of the MTA defendants for stabilization work performed on plaintiff's property. However, discovery concerning the work that was performed at plaintiff's property would not bear on the elements of intent, excuse or justification of prima facie tort. Neither would such discovery bear on the question of plaintiff's special damages. The complaint alleges that plaintiff developed, in conjunction with DOB, a plan to reinforce the structural stability of the building, and that plaintiff entered into an access agreement with MCC, pursuant to which MCC agreed to perform that plan at MCC's own expense. (Verified Complaint ¶¶ 19, 23.) That is, plaintiff does not allege that it had to bear the costs incurred in reinforcing the structural stability of plaintiff's building. Therefore, the MTA defendants' objection to items 8, 9, 10, 11, and 13 is sustained.

Items 2 through 7 seek discovery from the MTA defendants concerning the impact of blasting upon plaintiff's building; the risks of damage to the plaintiff's building and the risk of collapse; and the need to vacate, underpin or stabilize plaintiff's building in the event of blasting. The discovery sought could lead to admissible evidence bearing on the elements of prima facie tort as to the MTA defendants' intent, excuse or justification. However, as discussed above, discovery concerning the MTA defendants's actions, intent, excuses or justifications should be limited to the period prior to DOB's issuance of the emergency declaration and the vacate order.

Therefore, the MTA defendants are directed to produce, within 90 days, any documents in its custody, possession, or control that were created prior to June 8, 2009, that are responsive to items 2 through 7 of plaintiff's second notice for discovery dated February 3, 2011.

Accordingly, it is hereby ORDERED that the motion by defendants The Metropolitan Transportation Authority (sued herein as the Metropolitan Transit [*8]Authority), New York City Transit Authority, and MTA Capital Construction to quash the deposition notices of Horodniceanu, Parikh, and Goodrich is granted, and the notices are quashed, without prejudice to an application by plaintiff for further depositions after completion of the deposition of a witness to be produced by the Metropolitan Transportation Authority; and it is further

ORDERED that plaintiff's cross motion to compel defendants The Metropolitan Transportation Authority (sued herein as the Metropolitan Transit Authority), New York City Transit Authority, and MTA Capital Construction to comply with plaintiff's second notice for discovery and inspection dated February 3, 2011 is granted only to the extent that, within 90 days, these defendants shall produce any documents in its custody, possession, or control that were created prior to June 8, 2009, that are responsive to items 2 through 7 of plaintiff's second notice for discovery and inspection, and the cross motion is otherwise denied.

Dated: July 12 , 2012

New York, New York

ENTER:

/s/

J.S.C.