Caldone v. JRM Constr. Mgt., LLC

2025 NY Slip Op 30393(U)

Opinion

Caldone v JRM Constr. Mgt., LLC 2025 NY Slip Op 30393(U) January 30, 2025 Supreme Court, New York County Docket Number: Index No. 160485/2021 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 160485/2021 NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 01/30/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARYV. ROSADO PART 33M Justice --------------------------------------------------------------------------------X INDEX NO. 160485/2021 JOHN CALDONE, MOTION DATE 08/21/2024 Plaintiff, MOTION SEQ. NO. 001 - V -

JRM CONSTRUCTION MANAGEMENT, LLC,2 RECTOR STREET (NY), LLC,PIERPONT MECHANICAL DECISION + ORDER ON CORPORATION, MOTION

Defendant. ---------------------------------------------------------------------------------X

JRM CONSTRUCTION MANAGEMENT, LLC Third-Party Index No. 595516/2023 Plaintiff,

-against-

PIERPONT MECHANICAL CORPORATION, ASHLAR MECHANICAL CORP.

Defendant. -------------------------------------------------------------------------------X 2 RECTOR STREET (NY), LLC Second Third-Party Index No. 595822/2024 Plaintiff,

CONVENE, SENTRY CENTERS HOLDINGS LLC

Defendant. --------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001} 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 114, 115, 116, 117, 118, 119, 120, 121, 122 were read on this motion to/for DISCOVERY

Upon the foregoing documents, and after a conference on January 29, 2025, Third-Party

Defendant Ashlar Mechanical Corp.'s ("Ashlar") motion to compel Plaintiff to produce certain

160485/2021 CALDONE, JOHN vs. JRM CONSTRUCTION MANAGEMENT, LLC ET AL Page 1 of 4 Motion No. 001

[* 1] 1 of 4 INDEX NO. 160485/2021 NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 01/30/2025

discovery is granted in part, denied in part, and otherwise resolved pursuant to the status

conference order entered by the parties on January 29, 2025.

All issues in this motion have been resolved by the parties except for three requested

categories of disclosure:

First, Ashlar seeks e-mails between Plaintiff and his attorneys who represented him in a

Workers' Compensation Board matter relating to his C-3 report on January 13, 2021. Ashlar argues

these e-mails are not privileged pursuant to the crime-fraud exception.

Second, Ashlar seeks authorizations to access Plaintiffs Instagram account to rebut

Plaintiffs claims ofloss of enjoyment of life.

Third, Ashlar seeks videos on Plaintiffs cell phone that either he made or received from

his children and other individuals of the MMA fights of his son, John Caldone, which purportedly

show Plaintiff shadowboxing and jumping, to also rebut claims of loss of enjoyment of life.

Ashlar's request for access to Plaintiffs Instagram account is granted, as this information

is discoverable "to the extent it '" contradicts or conflicts with [a] plaintiffs alleged restrictions,

disabilities, and losses, and other claims"' (Doyle v Temco Service Industries, Inc., 172 AD3d 554

[1st Dept 2019] quoting Patterson v Turner Constr. Co., 88 AD3d 617, 618 [1st Dept 2011]). For

the same reason, Ashlar is entitled to videos on Plaintiffs cell phone from his son's MMA

tournaments to the extent it shows him travelling to his son's interstate tournaments and engaging

in other physical activity in contravention to his alleged disabilities.

However, at this moment, Ashlar is not entitled to Plaintiffs communications with his

attorneys in a Workers' Compensation Board matter relating to his C-3 report. These

communications are privileged and although Ashlar alleges a fraudulent conspiracy, these are

160485/2021 CALDONE, JOHN vs. JRM CONSTRUCTION MANAGEMENT, LLC ET AL Page 2 of4 Motion No. 001

2 of 4 [* 2] INDEX NO. 160485/2021 NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 01/30/2025

merely allegations. Absent an adjudication and finding of fraud by some authority, allegations

alone are insufficient to overcome the protections of the attorney-client privilege.

Accordingly, it is hereby,

ORDERED after a conference on January 29, 2025, Third-Party Defendant Ashlar

Mechanical Corp.'s ("Ashlar") motion to compel Plaintiff to produce certain discovery is granted

in part, denied in part, and otherwise resolved pursuant to the status conference order entered by

the parties on January 29, 2025; and it is further

ORDERED that Third-Party Defendant Ashlar Mechanical Corp.'s motion is granted to

the extent Plaintiff is directed to produce an authorization for Ashlar to access his Instagram

account, and to produce videos on his cell phone depicting Plaintiff at his son's MMA tournaments,

to the extent it shows him travelling to his son's interstate tournaments and engaging in other

physical activity in contravention to his alleged disabilities, within thirty-days of entry of this

Decision and Order; and it is further

ORDERED that Third-Party Defendant Ashlar Mechanical Corp.'s motion is denied,

without prejudice, to the extent he seeks e-mail correspondence between Plaintiff and his Workers'

Compensation Board attorneys relating to his C-3 report; and it is further

ORDERED that in all other respects, the motion is resolved in accordance with the status

conference order entered by the parties at the January 29, 2025 status conference; and it is further

[The remainder of this page is intentionally left blank.]

160485/2021 CALDONE, JOHN vs. JRM CONSTRUCTION MANAGEMENT, LLC ET AL Page 3 of 4 Motion No. 001

3 of 4 [* 3] INDEX NO. 160485/2021 NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 01/30/2025

ORDERED that within ten days of entry, counsel for Third-Party Defendant Ashlar

Mechanical Corp. shall serve a copy of this Decision and Order, with notice of entry, on all parties

via NYSCEF.

This constitutes the Decision and Order of the Court.

1/30/2025 DATE FoN. MARY v. ROSADO, J.s.c. CHECK ONE: CASE DISPOSED x NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART Q OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

160485/2021 CALDONE, JOHN vs. JRM CONSTRUCTION MANAGEMENT, LLC ET AL Page 4 of 4 Motion No. 001

4 of 4 [* 4]