Preview
FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015
NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024
FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015
NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024
FILED: APPELLATE DIVISION - 2ND DEPT 12/04/2018 11:47 AM 2018-06389
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 12/04/2018
To Be Argued By:
Richard M. Steigman
Time Requested: 15 Minutes
New York Supreme Court
APPELLATE DIVISION — SECOND DEPARTMENT
IN THE MATTER OF Docket Nos.
METRO-NORTH TRAIN ACCIDENT OF FEBRUARY 3, 2015 IN 2018-06389
THE TOWN OF MOUNT PLEASANT, NEW YORK, 2018-08521
VANDERCAR, LURIN, KIRSHENBAUM, IZZO, ANDERSON, GARSON, HERMANS,
ROSE, SHERIDAN, HERSHEY, WEISFELNER, TIMPINARO, STEMPEL, SCHAFER,
PERSAUD, KOPET, NADOL, UEDA LIEDTKE, HALMY, BRODY, PERSAUD,
MENDOZA, COURT, CLOQUHOUN, NOWOWIEJSKI, FITZGERALD, MILLER,
PERRENOD, MORGANTI, LAWSON, REDDY, KUNAK, DEJONG and TRACY,
Plaintiffs-Respondents,
v.
(Caption Continued on the Reverse)
BRIEF FOR PLAINTIFFS-RESPONDENTS
KOPET, NADOL AND UEDA, AND ON BEHALF
OF THE PLAINTIFFS’ STEERING COMMITTEE
GAIR, GAIR, CONASON, RUBINOWITZ,
BLOOM, HERSHENHORN, STEIGMAN
& MACKAUF
Attorneys for Plaintiffs-Respondents
Kopet, Nadol and Ueda,
and on Behalf of the Plaintiffs’
Steering Committee
80 Pine Street, 34th Floor
New York, New York 10005
Of Counsel:
212-943-1090
Richard M. Steigman rms@gairgair.com
D. Allen Zachary azachary@gairgair.com
Westchester County Clerk’s Index No. 64924/15
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METRO-NORTH COMMUTER RAILROAD, METROPOLITAN TRANSPORTATION
AUTHORITY, ARGENT VENTURES LLC, MIDTOWN TDR VENTURES,
and STEVEN SMALLS,
Defendants-Appellants,
TOWN OF MOUNT PLEASANT, COUNTY OF WESTCHESTER,
Defendants-Respondents,
and
BRODY,
Third-Party Defendant-Respondent.
STEVEN SMALLS and LACEY SMALLS,
Plaintiffs-Appellants,
v.
TOWN OF MOUNT PLEASANT, COUNTY OF WESTCHESTER,
ARGENT VENTURES, LLC and MIDTOWN TDR VENTURES, LLC,
Defendants-Respondents.
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...............................................................................................ii
COUNTERSTATEMENT OF QUESTIONS PRESENTED ...................................... 1
PRELIMINARY STATEMENT ......................................................................................... 2
COUNTERSTATEMENT OF FACTS ............................................................................. 4
ARGUMENT ......................................................................................................................... 7
I. Upon its careful in camera review of the document, the motion
court properly directed defendant-appellants Metro-North
and Smalls to produce a copy of their settlement agreement. ........................... 7
CONCLUSION ................................................................................................................... 23
PRINTING SPECIFICATIONS STATEMENT .......................................................... 25
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TABLE OF AUTHORITIES
Page(s)
Cases
Alden Global Value Recovery Master Fund, LP v Keybank N.A.,
159 AD3d 618 [1st Dept 2018] ..................................................................................... 21
American Re-Ins. Co. v United States Fid. & Guar. Co.,
19 AD3d 103 [1st Dept 2005] ....................................................................................... 17
Coleman v N.Y.C. Transit Auth.,
37 NY2d 137 [1975] ......................................................................................................... 9
Denburg v Parker Chapin Flattau & Klimpl,
82 NY2d 375 [1993] ....................................................................................................... 11
Elie v City of New York,
92 AD3d 716 [2d Dept 2012]........................................................................................ 10
G ardino Graco Children Prod c Inc.,
50 Misc3d 645 [Sup Ct, Suffolk County 2015]................................................ 12, 13, 19
Hallock v State of New York,
64 NY2d 224 [1984] ....................................................................................................... 11
In re Matter of East 51st St. Crane Collapse Litig.
31 Misc3d 406 [Sup Ct, NY County 2011] ...................................................... 12, 13, 14
In re New York County Data Entry Worker Product Liability Lit.
162 Misc2d 263 [Sup Ct, NY County 1994],
affirmed 222 AD2d 381 [1st Dept 1995]............................................................ 14, 15, 21
Mahoney v Turner,
61 AD3d 101 [1st Dept 2009] ......................................................................................... 8
Mahoney v Turner
61 AD3d 104 [1st Dept 2009] ..................................................................................passim
Masterwear Corp. v Bernard,
298 AD2d 249 [1st Dept 2002] .....................................................................9, 10, 11, 16
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Matter of Doolan v Board of Cooperative Educational Services
48 NY2d 341 [1979] ....................................................................................................... 18
Matter of Eighth Jud District Asbestos Litigation,
8 NY3d 717 [2007] ........................................................................................................... 9
Matter of Gould v New York City Police Dept,
89 NY2d 267 [1996] ....................................................................................................... 18
Matter of Midland Ins. Co.,
87 AD3d 487 [1st Dept 2011] ....................................................................................... 17
Matter of Newsday v Empire State Development Corp.,
98 NY2d 359 [2002] ....................................................................................................... 18
Matter of Twentieth Century Fox Film Corp.,
190 AD2d 483 [1st Dept 1993] ............................................................................... 13, 19
Matter of The Washington Post Co. v New York State Ins. Co.,
61 NY2d 557 [1984] ....................................................................................................... 18
Osowski v AMEC Constr. Mgmt., Inc.,
69 AD3d 99 [1st Dept 2009] ....................................................................................passim
Palomino v Gill,
4 Misc3d 1029 [A] [Sup Ct, NY County 2004] ........................................................... 17
People v Choi,
137 AD3d 808 [2d Dept 2016] ....................................................................................... 8
People v Mazyck,
118 AD3d 728 [2d Dept 2014] ....................................................................................... 8
Polsky v 145 Hudson Assoc.
(2015 NY Slip Op 32071 [U], NY Misc Lexis 4001
[Sup Ct, NY County 2015]) ........................................................................................... 16
Twenty Four Hour Fuel Oil Corp. v Hunter Ambulance Inc.,
226 AD2d 175 [1st Dept 1996] ..................................................................................... 10
Statutes
CPLR § 3103 (a).................................................................................................................... 16
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CPLR § 4547 ......................................................................................................................... 17
Labor Law § 240 [1] ............................................................................................................. 14
Public Officers Law § 84 ..................................................................................................... 18
Public Officers Law § 87(2) ................................................................................................ 18
Regulations
22 NYCRR § 216.1 (a) ......................................................................................................... 19
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COUNTERSTATEMENT OF QUESTIONS PRESENTED
1. Whether the motion court, after a careful in camera review of the document,
appropriately exercised its discretion in directing the Metro North defendants
and defendant Smalls to disclose to plaintiffs a copy of the settlement
agreement entered into between Metro North and Smalls relating to the same
events giving rise to this action.
Plaintiffs answer this question in the affirmative.
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PRELIMINARY STATEMENT
This appeal arises out of an action involving multiple plaintiffs with personal
injury and/or wrongful death claims stemming from an incident on February 3, 2015,
during which a Metro-North commuter train operated by Steven Smalls struck a
private vehicle at a grade crossing located in Mount Pleasant, New York. On this
appeal, Metro-North asks this Court to reverse an order requiring it to disclose the
terms of the settlement agreement entered into between it and Steven Smalls, who in
addition to being named individually as defendant in most of these now consolidated
actions, had initially retained counsel for the purpose of bringing his own claims
against Metro-North related to the subject collision.
The motion court providently exercised the significant discretion afforded to it
in matters related to discovery in determining, after a careful in camera review of the
settlement agreement, that the amount of the settlement and the terms of the
agreement were relevant to the claims in this action and therefore had to be disclosed
to the plaintiffs. Significantly, on this appeal, Metro-North does not dispute the
relevance of this information. To the contrary, it expressly recognizes its significance
to the issue of Mr. Small s bias and acknowledges that it may be used to impeach Mr.
Small s credibility. Accordingly, the Orders on appeal must be affirmed because the
case law is clear that nonsettling parties are entitled to the disclosure of a settlement
agreement, even one that contains a provision providing for its confidentiality, so long
as the agreement is relevant to the claims or defenses asserted in the action.
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In short, Metro-North s contention that it should be shielded from disclosing
the details of a settlement agreement regarding claims made by a witness that it
intends to produce in its defense of the very same case cannot stand up to any
reasonable analysis. Metro-North s attempt to shield Mr. Smalls from scrutiny
regarding his financial motives to testify on its behalf should not be countenanced by
this Court.
Contrary to Metro-North s contentions, this appeal has little to nothing to do
with the general public policy favoring settlements. After all, of all of the plaintiffs in
this action, many of whom have asserted highly meritorious personal injury and
wrongful death claims against both Mr. Smalls and Metro-North, Metro-North has
decided to seek a settlement with just one person, Mr. Smalls. It is no coincidence
that Mr. Smalls also happened to be the potential plaintiff in the greatest position to
undermine Metro-North s defenses. A settlement of this nature, where one defendant
has essentially bought off a material witness through an early settlement not made
available to any other plaintiff, clearly raises questions of Mr. Smalls potential bias in
favor of his employer, Metro-North, of which the remaining plaintiffs are entitled to
explore through discovery and before the jury at trial. Obviously, the terms of his
secret settlement with Metro-North are integral to this issue and therefore must be
disclosed in the interest of fairness and in accordance with New York s liberal rules
governing discovery. Under the particular circumstances of this case, those interests
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far outweigh any countervailing public policy that would allow Metro-North and Mr.
Smalls to hide behind the confidentiality provisions of their settlement agreement.
COUNTERSTATEMENT OF FACTS
This matter arises from a tragic accident on the Metro-North Railroad which
occurred on February 3, 2015 at the Commerce Street grade crossing on the Harlem
Line. On that evening, a northbound commuter train struck a motor vehicle that had
stopped on the tracks with such force that it caused multiple 2,000 pound segments of
the electrified third rail to lift up, penetrate the motor vehicle and then the train itself,
causing a fire in the first car of the train. As a result, six people died and dozens more
were injured.
Multiple lawsuits were filed against, inter alia, defendant-appellants, Metro-
North Commuter Railroad, Metropolitan Transportation Authority, Argent Ventures
LLC, Midtown TDR Ventures and Steven Smalls, the engineer-operator of the train
(all of whom are now represented by Landman Corsi et al.) alleging negligence in
causing or contributing to this accident. These allegations include claims involving
the failure to Metro-North to maintain the crossing in a reasonably safe manner with
respect to visibility of the crossing, their failure to properly control the traffic light
sequence at the crossing, the failure to maintain and install a frangible third rail which
should have broken off in pieces as opposed to what occurred herein, as well as
claims against Smalls for his negligent operation of the train in failing to slow down
and avoid or mitigate the accident.
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Eventually, the Plaintiff s Steering Committee was established to oversee all
discovery matters related to liability in this action (A 32-33). Among those bringing
claims for the injuries sustained in the accident was defendant Steven Smalls, the
aforementioned train engineer. He retained The Kantor Law Firm, PLLC, which
instituted an action of behalf on Mr. Smalls and his wife against the Town of Mount
Pleasant, the County of Westchester, Argent Ventures and Midtown TDR Ventures,
LLC (some of which are represented by Landman Corsi, the attorney for Metro-
North and Smalls for the purposes of this appeal). Mr. Kantor went so far as to
request participation in Plaintiffs Steering Committee, a request which the Committee
declined due to the apparent conflict of interest in sharing strategy and preparation of
experts with an attorney representing a party who was simultaneously being sued as a
defendant.
In a letter to Justice Lefkowitz dated May 13, 2016, Mr. Kantor made clear that
he reserved his right to file additional claims against Metro-North, a right Mr. Smalls
possessed under the Federal Employees Liability Act.
Attempts to move forward with discovery in this case have been consistently
thwarted. Initially, due to the pending NTSB investigation, the municipal defendants
demurred in serving any substantial documentary discovery, citing investigative
privilege concerns during the pendency of the investigation. Even after the NTSB
issued its final report on July 25, 2017 (nearly 2 ½ years after the accident), the
defendants have failed to satisfy their discovery obligations, resulting in a great deal of
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motion practice before Justice Lefkowitz and the service of multiple Notices of
Appeal by defendants.
Earlier this year, the Plaintiffs Steering Committee learned that Mr. and Mrs.
Smalls had settled their claims against Metro-North and as a result, would not be filing
a Complaint against it. It is noteworthy that Metro-North chose to settle the claims
of Smalls without ever having offered a penny in settlement to any of the other
plaintiffs in the case, despite the enormity of the damages involved. When plaintiffs
demanded a copy of the settlement agreement in advance of Smalls deposition (A
95), Metro-North resisted, resulting in the Court ordering both Metro-North and
Smalls to produce the documents for an in camera inspection. Metro-North moved to
renew and/or reargue that initial order, which by an Order entered May 23, 2018, was
denied and the Court again directed Metro-North to provide a copy of the settlement
agreement to the Court for in camera review (A 11). As a result of that review, the
Court ordered the documents to be disclosed on July 9, 2018 (A 30). The present
Notices of Appeal ensued and this Court subsequently granted Metro-North s motion
confirming that the automatic stay was in effect staying enforcement of the Court s
July 9, 2018 Order pending appeal (2018 NY Slip Op 80911 [U][Aug. 20, 2018]).
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ARGUMENT
I. Upon its careful in camera review of the document, the motion court
properly directed defendant-appellants Metro-North and Smalls to
produce a copy of their settlement agreement.
To be clear, it takes no great insight or imagination to recognize exactly what is
happening here. To put it mildly, it is no coincidence that Metro-North chose to
settle just one case (that of Mr. Smalls) to this point, while not even engaging an any
settlement negotiations with any of the other scores of plaintiffs. An overwhelming
inference exists that Metro-North did not want Mr. Smalls, whom they now
simultaneously represent, to formally come forward with any claims against Metro-
North in this action, obviously based upon his own unique knowledge and experience
as an employee and engineer for the railroad. Having settled his claims (before he
even had to file a Complaint against it), Metro-North now wishes to present Mr.
Smalls as witness on its behalf, desperately hoping to prevent the jury from learning
about Mr. Smalls potential negligence claims in this case against Metro-North and his
subsequent payout as a result.
Viewed in this case, Metro-North and Smalls alleged concerns about
confidentiality must be revealed as hollow (see Appellants Brief, at 11-12). Every
witness would like matters that could undermine his or her credibility to be kept
“confidential.” However, such an argument should never properly be used a sword to
prevent a jury from learning about a witness potential bias or motive to testify.
Indeed, the situation herein is no different than if the government in a criminal case
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were to argue that a plea deal which granted immunity to a witness against a
defendant in a criminal case should be withheld from discovery because the witness
was counting on privacy when he made the deal. Obviously, the defendant in that
case has every right to bring this information to light so a jury can fairly evaluate a
witness testimony (see People v Mazyck, 118 AD3d 728 [2d Dept 2014][jury could
properly consider the fact that witness testified pursuant to a cooperation agreement];
People v Choi, 137 AD3d 808, 809 [2d Dept 2016][the People were properly permitted
to elicit the bolstering aspect of the cooperation agreement entered into by the
witness, and the introduction of the written cooperation agreement into evidence was
proper]); said plainly, failure by an attorney to do so would likely constitute legal
malpractice.
The case law is clear that settlement agreements, even those containing
confidentiality provisions, are not automatically exempt from disclosure,
notwithstanding the existence of a general public policy that favors the enforcement
of settlement agreements pursuant to their terms (see Osowski v AMEC Constr. Mgmt.,
Inc., 69 AD3d 99, 106 [1st Dept 2009]; Mahoney v Turner, 61 AD3d 101, 104 [1st Dept
2009]). In Mahoney, this Court said that “disclosure of the terms of a settlement
agreement by a settling party to a nonsettling party may be appropriate, despite the
presence of a confidentiality clause in the agreement, where the terms of the
agreement are ‘material and necessary to the nonsettling party s case” (61 AD3d at
104 [directing in camera inspection of settlement agreement where certain defendants
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alleged that plaintiff and other defendants were “improperly colluding”], citing
Masterwear Corp. v Bernard, 298 AD2d 249, 250 [1st Dept 2002][directing disclosure of
codefendant s settlement agreement notwithstanding that it contained a confidentiality
provision]).
On this appeal, Metro-North does not contest the fact that its settlement
agreement with Mr. Smalls is material and necessary because it goes to Mr. Smalls
bias and it could properly be used for impeachment purposes (Appellants Brief, at
18). Indeed, it expressly acknowledges that Mr. Smalls will be “subject to arguments
at trial that he is an interested witness with a ‘motive to shield himself from blame ”
(id. at 18-19, quoting Coleman v N.Y.C. Transit Auth., 37 NY2d 137, 141-143 [1975]). It
further posits that the “Confidential Settlement Agreement entered into with Mr.
Smalls becomes just another possible vehicle for Plaintiffs to try to discredit Mr.
Smalls testimony at trial based on his alleged bias” (id. at 19).
Thus, Metro-North makes no attempt to dispute the relevance of the
settlement agreement, nor could it reasonably do so. After all, the Court of Appeals
has noted that settlement agreements are admissible to show collusion between
parties (see Matter of Eighth Jud District Asbestos Litigation, 8 NY3d 717, 721
[2007][permitting introduction of high-low settlement into evidence as “courts and
commentators alike have acknowledged that secretive agreements may result in
prejudice to the nonagreeing defendant (in this case, plaintiffs) at trial, distort the true
adversarial nature of the litigation process, and cast a cloud over the judicial system”]).
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Likewise, Smalls secretive agreement with Metro-North would result in prejudice
against plaintiffs as Smalls settlement shows the true adversarial nature between
Smalls and Metro-North against plaintiffs interest, as well as his bias towards Metro-
North, and is thus highly material to his credibility should he testify that Metro-North
was not negligent.
It should be noted, that any concerns over the ultimate admissibility at trial of
the settlement agreement, or certain portions of the settlement agreement, would be
premature at this juncture and could not provide a proper basis for Metro-North s
refusal to disclose the agreement. It is well established that the standards governing
disclosure are far more liberal than those governing admissibility (see e.g. Elie v City of
New York, 92 AD3d 716, 718 [2d Dept 2012][inadmissibility is not a proper objection
to a discovery demand]; see also Twenty Four Hour Fuel Oil Corp. v Hunter Ambulance Inc.,
226 AD2d 175, 176 [1st Dept 1996]). More importantly, Metro-North was properly
directed to produce the settlement agreement here because Metro-North has failed to
demonstrate that the settlement agreement will not contain relevant information,
which is the primary consideration for determining whether a settlement agreement
should be disclosed (see Osowski, 69 AD3d at 106; Masterwear Corp., 298 AD2d at 250).
Nevertheless, on appeal, Metro-North contends that the relevance of the
settlement agreement is outweighed by the “strong public policy favoring settlements”
(Appellants Brief, at 11). However, the Courts have repeatedly made it clear that
such policy, although important, cannot be used to justify the withholding of a
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settlement agreement from disclosure where the agreement, or its terms, are material
and necessary to the nonsettling party s case claims (see Mahoney, 61 AD3d at 104,
citing Masterwear Corp., 298 AD2d at 250; Osowski, 69 AD3d at 106). As such, Metro-
North incorrectly faults the motion court for its purported failure to consider the
public policy favoring settlements.
It should be added that Metro-North s near-exclusive reliance on the strong
public policy favoring settlements is particularly misplaced under the specific factual
circumstances at issue here. While the Court of Appeals has often referenced the
strong public policy favoring enforcement of settlement agreements, it has done so in
the context of a situation where all of the interested parties have come together and
knowingly and voluntarily negotiated a compromise resolving their dispute (see e.g.
Denburg v Parker Chapin Flattau & Klimpl, 82 NY2d 375, 383 [1993]; Hallock v State of
New York, 64 NY2d 224, 230 [1984]). In such cases, where there has been a
“negotiated compromise of a dispute…, there is a societal benefit in recognizing the
autonomy of parties to shape their own solution to a controversy rather than having
one judicially imposed” (Denburg, 82 NY2d at 383). However, there is no comparable
societal benefit to be found here where the settlement agreement at issue was not
negotiated by all of the interested parties, but instead, was negotiated in secret by the
two primary defendants in this action. As mentioned above, the only reasonable
inference that can be drawn from the circumstances surrounding the settlement is that
Metro-North settled with Mr. Smalls, and only Mr. Smalls, even before he
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commenced an action against it in order to avoid the uncomfortable situation of
publically having its own train operator formally accuse Metro-North of negligence.
Moreover, by buying Mr. Smalls off early, Metro-North seeks to better protect itself
from the remaining plaintiffs claims by effectively taking over Mr. Smalls
representation. The strong public policy in favor of settlements is not intended to
provide protection for settling parties in these circumstances by allowing them to use
a confidentiality provisions to shield relevant, discoverable information from
nonsettling parties.
The case law cited by Metro-North on appeal does support its contention that
the motion court abused its discretion in directing the disclosure of the settlement
agreement after it conducted an in camera review of its contents. The case chiefly
relied upon by appellants, In re Matter of East 51st St. Crane Collapse Litig. (31 Misc3d
406 [Sup Ct, NY County 2011])(Appellants Brief, at 13-14) does not constitute
binding authority on this appellate court, and significantly, it has never been followed
or cited as persuasive by any subsequent decision at any level. To the contrary, the
only case that has ever cited the decision, G ardino Graco Children Prod c Inc., 50
Misc3d 645, 647 [Sup Ct, Suffolk County 2015]), expressly declined to follow it,
holding that the “parties interest in keeping the details of their settlement confidential
do not constitute good cause to the extent that it outweighs th[e] public interest” in
the lawsuit (50 Misc3d at 649). The Court in Guardino emphasized that it was
particularly inappropriate to conceal the terms of a settlement agreement “in product
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liability and other tort actions where the information might alert other consumers to
potential defects” (50 Misc3d at 649, citing Matter of Twentieth Century Fox Film Corp.,
190 AD2d 483, 486 [1st Dept 1993] (internal quotations omitted)). The Court noted that
the strong public interest in the lawsuit, which involved the death of an infant,
favored disclosure in that case. This reasoning is equally applicable to this case where
there is clearly a strong public interest in this lawsuit arising out of a collision between
a Metro-North commuter train and a private vehicle on the railroad tracks, which
resulted in numerous deaths and even more serious injuries.
In addition, the circumstances at issue in In re Matter of East 51st St. Crane
Collapse Litig. are readily distinguishable from those at issue in this case. There, the
settlement agreement at issue was made on the eve of trial between one wrongful
death plaintiff and certain of the defendants. There is no indication in that decision
that the decedent, Bleidner, was himself negligent in bringing about the fatal crane
collapse, whereas here, multiple plaintiffs have asserted negligence claims directly
against Mr. Smalls. Furthermore, there is nothing in the Crane decision that would
support the inference that Bleidner s settlement was part of a strategic effort by some
or all of the defendants to coopt a critical witness on the eve of trial so they could
better control his testimony. Here, in contrast, Mr. Smalls retained an attorney to
bring his own negligence claims against Metro-North, but Metro-North offered him,
and only him, a secret settlement to avoid the embarrassment of publicly being
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accused of negligence by its own employee. The difference in timing is also
significant. In Crane, discovery had already been completed and the settlement was
entered after the parties met before a JAMS mediator. Throughout that time period,
the interests of Bleidner s estate and the defendants were diligently represented by
separate counsel with adverse interests. As such, there was no obvious reason in
Crane for the Court or anyone else to doubt that the settling defendants did not have a
reasonable basis for valuing Bleidner s claims and assessing their liability (which was
clear under Labor Law § 240 [1], at least as against the owner of the building and
general contractor), and for its decision to settle Bleidner s claims but not the claims
of all plaintiffs at that time. In contrast, here, there had been no discovery and Mr.
Smalls had not even commenced an action yet against Metro-North when they
entered their settlement agreement and Metro-North effectively took over his
representation, ensuring that its interests would be aligned throughout this entire
litigation. These circumstances, unlike those in Crane raise a strong inference that
Metro-North settled with Mr. Smalls early to silence his claims against it. In any
event, Metro-North simply fails to put forth a convincing argument that this Court
should be the first and only Court to take guidance from the decision in In re Matter of
East 51st St. Crane Collapse Litig.
Another case relied upon by appellants, In re New York County Data Entry Worker
Product Liability Lit. (162 Misc2d 263 [Sup Ct, NY County 1994], affirmed 222 AD2d
381 [1st Dept 1995][while noting that there was no dispute that the amount of the
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settlement had to be disclosed]) is misplaced. As this Court emphasized in a later
decision where it affirmed the motion court s order directing the disclosure of a
confidential settlement agreement, expressly declining to follow In re New York County
Data Entry Worker Product Liability Lit., a “confidential” settlement agreement will be
subject to disclosure where it is material and necessary to the resolution of the claims
or defenses in the action (see Osowski, 69 AD3d at 106). In any event, In re New York
County Data Entry Worker Product Liability Lit. can be distinguished on its facts because
the Court there concluded that the settling parties probably would not be relevant
witnesses in the case. Clearly, the situation here presents the exact converse: Mr.
Smalls, the engineer of the train, is undoubtedly a crucial witness with knowledge not
only of what occurred that day, but also the practices of the railroad at that crossing.
Metro-North s citation to Mahoney v Turner (61 AD3d 104 [1st Dept 2009]) is
equally misplaced. In that case, an injured worker sued an owner and general
contractor who, in turn, sued certain subcontractors. Plaintiff entered into a
settlement agreement with the defendants and the subcontractor sought a copy of the
settlement agreement, which defendants refused to disclose citing its confidentiality
provisions. The trial court required defendants to disclose the amount of the
settlement but refused to compel defendants to disclose the entire agreement. The
First Department overturned the court s decision, stating that an in camera inspection
should be conducted to determine the relevancy of the settlement agreement,
especially in light of the subcontractors argument that plaintiff was colluding with
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NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024
defendants against the subcontractor. In doing so, the First Department once again
emphasized that “disclosure of the terms of a settlement agreement by a settling party
to a nonsettling party may be appropriate, despite the presence of a confidentiality
clause in the agreement, where the terms of the agreement are ‘material and necessary
to the nonsettling party s case ” (61 AD3d at 104, citing Masterwear Corp., 298 AD2d at
250 [directing disclosure of codefendant s settlement agreement notwithstanding that
it contained a confidentiality provision]). While the Court recognized the need to
balance the parties conflicting interests, it did not remotely suggest that a settling
party s interest in confidentiality outweighs a nonsettling party s interest in obtaining
the settlement agreement. Indeed, the Court noted that, where appropriate, the public
policy concerns favoring settlements could be “accommodated short of denying a
non-settling defendant information that is material and relevant to its case,” by, for
example, entering a protecting order pursuant to CPLR 3103 (a) limiting the
disclosure of the settlement agreement to the nonsettling parties and their counsel (id.
at 106). Overall, there is nothing in Mahoney that demonstrates that the motion court
abused its discretion in directing the disclosure of the settlement agreement after its
own careful in camera review showed that the settlement agreement contained material
and necessary information.
Additional case law supports the motion court s decision below. In Polsky v
145 Hudson Assoc. (2015 NY Slip Op 32071 [U], NY Misc Lexis 4001 [Sup Ct, NY
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County 2015]), the Court ordered the disclosure of a settlement agreement based
precisely on the reasoning argued by plaintiffs herein. The Court pointed out that:
“[the defendant] Board members may be witnesses regarding the parties
claims, counterclaims, or defenses. Evidence of the Board ‘accepting, or
offering or promising to accept, any valuable consideration in
compromising or attempting to compromise a claim, CPLR 4547, by the
Board comparable to a claim by plaintiffs thus may reveal a bias relevant
to Board members credibility. Therefore, even if the court determines
that the Offering Plan is unambiguous, the settlement agreement still
may be material and necessary for impeachment purposes”
(id. at *3, citing Matter of Midland Ins. Co., 87 AD3d 487, 491 [1st Dept 2011]; Mahoney,
61 AD3d at 104; American Re-Ins. Co. v United States Fid. & Guar. Co., 19 AD3d 103,
104 [1st Dept 2005]).
In addition to these cases, further support for disclosure of the settlement
agreement in this particular case, which involves claims asserted against Metro-North,
a public entity, can be found in the law related to FOIL requests under the Freedom
of Information Law. This law is abundantly clear that there is NO
CONFIDENTIALITY regarding settlement agreements involving public authorities
like Metro North (see Palomino v Gill, 4 Misc3d 1029 [A] [Sup Ct, NY County 2004]).
In Palomino, the Court rejected the confidentiality provision of a settlement agreement
and required disclosure of a settlement agreement made between a coalition of
residents of Battery Park and the Battery Park City Authority. As the court explained,
as set forth below, confidential agreements with public authorities cannot be honored.
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The Court explained that the Freedom of Information Law “provides ‘that
government is the public s business and * * * the public * * * should have access to
the records of government ” Public Officers Law § 84. To promote open
government and public accountability, it imposes “a broad duty” on government to
make its records publicly available (see Matter of Gould v New York City Police Dept, 89
NY2d 267, 274 [1996]); see also Matter of Newsday v Empire State Development Corp., 98
NY2d 359, 362 [2002]). Indeed, all government records are presumptively open for
public inspection and copying unless an enumerated exemption contained in Public
Officers Law § 87(2) insul
Preview
FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 FILED: APPELLATE DIVISION - 2ND DEPT 12/04/2018 11:47 AM 2018-06389 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 12/04/2018 To Be Argued By: Richard M. Steigman Time Requested: 15 Minutes New York Supreme Court APPELLATE DIVISION — SECOND DEPARTMENT IN THE MATTER OF Docket Nos. METRO-NORTH TRAIN ACCIDENT OF FEBRUARY 3, 2015 IN 2018-06389 THE TOWN OF MOUNT PLEASANT, NEW YORK, 2018-08521 VANDERCAR, LURIN, KIRSHENBAUM, IZZO, ANDERSON, GARSON, HERMANS, ROSE, SHERIDAN, HERSHEY, WEISFELNER, TIMPINARO, STEMPEL, SCHAFER, PERSAUD, KOPET, NADOL, UEDA LIEDTKE, HALMY, BRODY, PERSAUD, MENDOZA, COURT, CLOQUHOUN, NOWOWIEJSKI, FITZGERALD, MILLER, PERRENOD, MORGANTI, LAWSON, REDDY, KUNAK, DEJONG and TRACY, Plaintiffs-Respondents, v. (Caption Continued on the Reverse) BRIEF FOR PLAINTIFFS-RESPONDENTS KOPET, NADOL AND UEDA, AND ON BEHALF OF THE PLAINTIFFS’ STEERING COMMITTEE GAIR, GAIR, CONASON, RUBINOWITZ, BLOOM, HERSHENHORN, STEIGMAN & MACKAUF Attorneys for Plaintiffs-Respondents Kopet, Nadol and Ueda, and on Behalf of the Plaintiffs’ Steering Committee 80 Pine Street, 34th Floor New York, New York 10005 Of Counsel: 212-943-1090 Richard M. Steigman rms@gairgair.com D. Allen Zachary azachary@gairgair.com Westchester County Clerk’s Index No. 64924/15 FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 METRO-NORTH COMMUTER RAILROAD, METROPOLITAN TRANSPORTATION AUTHORITY, ARGENT VENTURES LLC, MIDTOWN TDR VENTURES, and STEVEN SMALLS, Defendants-Appellants, TOWN OF MOUNT PLEASANT, COUNTY OF WESTCHESTER, Defendants-Respondents, and BRODY, Third-Party Defendant-Respondent. STEVEN SMALLS and LACEY SMALLS, Plaintiffs-Appellants, v. TOWN OF MOUNT PLEASANT, COUNTY OF WESTCHESTER, ARGENT VENTURES, LLC and MIDTOWN TDR VENTURES, LLC, Defendants-Respondents. FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ...............................................................................................ii COUNTERSTATEMENT OF QUESTIONS PRESENTED ...................................... 1 PRELIMINARY STATEMENT ......................................................................................... 2 COUNTERSTATEMENT OF FACTS ............................................................................. 4 ARGUMENT ......................................................................................................................... 7 I. Upon its careful in camera review of the document, the motion court properly directed defendant-appellants Metro-North and Smalls to produce a copy of their settlement agreement. ........................... 7 CONCLUSION ................................................................................................................... 23 PRINTING SPECIFICATIONS STATEMENT .......................................................... 25 i FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 TABLE OF AUTHORITIES Page(s) Cases Alden Global Value Recovery Master Fund, LP v Keybank N.A., 159 AD3d 618 [1st Dept 2018] ..................................................................................... 21 American Re-Ins. Co. v United States Fid. & Guar. Co., 19 AD3d 103 [1st Dept 2005] ....................................................................................... 17 Coleman v N.Y.C. Transit Auth., 37 NY2d 137 [1975] ......................................................................................................... 9 Denburg v Parker Chapin Flattau & Klimpl, 82 NY2d 375 [1993] ....................................................................................................... 11 Elie v City of New York, 92 AD3d 716 [2d Dept 2012]........................................................................................ 10 G ardino Graco Children Prod c Inc., 50 Misc3d 645 [Sup Ct, Suffolk County 2015]................................................ 12, 13, 19 Hallock v State of New York, 64 NY2d 224 [1984] ....................................................................................................... 11 In re Matter of East 51st St. Crane Collapse Litig. 31 Misc3d 406 [Sup Ct, NY County 2011] ...................................................... 12, 13, 14 In re New York County Data Entry Worker Product Liability Lit. 162 Misc2d 263 [Sup Ct, NY County 1994], affirmed 222 AD2d 381 [1st Dept 1995]............................................................ 14, 15, 21 Mahoney v Turner, 61 AD3d 101 [1st Dept 2009] ......................................................................................... 8 Mahoney v Turner 61 AD3d 104 [1st Dept 2009] ..................................................................................passim Masterwear Corp. v Bernard, 298 AD2d 249 [1st Dept 2002] .....................................................................9, 10, 11, 16 ii FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 Matter of Doolan v Board of Cooperative Educational Services 48 NY2d 341 [1979] ....................................................................................................... 18 Matter of Eighth Jud District Asbestos Litigation, 8 NY3d 717 [2007] ........................................................................................................... 9 Matter of Gould v New York City Police Dept, 89 NY2d 267 [1996] ....................................................................................................... 18 Matter of Midland Ins. Co., 87 AD3d 487 [1st Dept 2011] ....................................................................................... 17 Matter of Newsday v Empire State Development Corp., 98 NY2d 359 [2002] ....................................................................................................... 18 Matter of Twentieth Century Fox Film Corp., 190 AD2d 483 [1st Dept 1993] ............................................................................... 13, 19 Matter of The Washington Post Co. v New York State Ins. Co., 61 NY2d 557 [1984] ....................................................................................................... 18 Osowski v AMEC Constr. Mgmt., Inc., 69 AD3d 99 [1st Dept 2009] ....................................................................................passim Palomino v Gill, 4 Misc3d 1029 [A] [Sup Ct, NY County 2004] ........................................................... 17 People v Choi, 137 AD3d 808 [2d Dept 2016] ....................................................................................... 8 People v Mazyck, 118 AD3d 728 [2d Dept 2014] ....................................................................................... 8 Polsky v 145 Hudson Assoc. (2015 NY Slip Op 32071 [U], NY Misc Lexis 4001 [Sup Ct, NY County 2015]) ........................................................................................... 16 Twenty Four Hour Fuel Oil Corp. v Hunter Ambulance Inc., 226 AD2d 175 [1st Dept 1996] ..................................................................................... 10 Statutes CPLR § 3103 (a).................................................................................................................... 16 iii FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 CPLR § 4547 ......................................................................................................................... 17 Labor Law § 240 [1] ............................................................................................................. 14 Public Officers Law § 84 ..................................................................................................... 18 Public Officers Law § 87(2) ................................................................................................ 18 Regulations 22 NYCRR § 216.1 (a) ......................................................................................................... 19 iv FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 COUNTERSTATEMENT OF QUESTIONS PRESENTED 1. Whether the motion court, after a careful in camera review of the document, appropriately exercised its discretion in directing the Metro North defendants and defendant Smalls to disclose to plaintiffs a copy of the settlement agreement entered into between Metro North and Smalls relating to the same events giving rise to this action. Plaintiffs answer this question in the affirmative. 1 FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 PRELIMINARY STATEMENT This appeal arises out of an action involving multiple plaintiffs with personal injury and/or wrongful death claims stemming from an incident on February 3, 2015, during which a Metro-North commuter train operated by Steven Smalls struck a private vehicle at a grade crossing located in Mount Pleasant, New York. On this appeal, Metro-North asks this Court to reverse an order requiring it to disclose the terms of the settlement agreement entered into between it and Steven Smalls, who in addition to being named individually as defendant in most of these now consolidated actions, had initially retained counsel for the purpose of bringing his own claims against Metro-North related to the subject collision. The motion court providently exercised the significant discretion afforded to it in matters related to discovery in determining, after a careful in camera review of the settlement agreement, that the amount of the settlement and the terms of the agreement were relevant to the claims in this action and therefore had to be disclosed to the plaintiffs. Significantly, on this appeal, Metro-North does not dispute the relevance of this information. To the contrary, it expressly recognizes its significance to the issue of Mr. Small s bias and acknowledges that it may be used to impeach Mr. Small s credibility. Accordingly, the Orders on appeal must be affirmed because the case law is clear that nonsettling parties are entitled to the disclosure of a settlement agreement, even one that contains a provision providing for its confidentiality, so long as the agreement is relevant to the claims or defenses asserted in the action. 2 FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 In short, Metro-North s contention that it should be shielded from disclosing the details of a settlement agreement regarding claims made by a witness that it intends to produce in its defense of the very same case cannot stand up to any reasonable analysis. Metro-North s attempt to shield Mr. Smalls from scrutiny regarding his financial motives to testify on its behalf should not be countenanced by this Court. Contrary to Metro-North s contentions, this appeal has little to nothing to do with the general public policy favoring settlements. After all, of all of the plaintiffs in this action, many of whom have asserted highly meritorious personal injury and wrongful death claims against both Mr. Smalls and Metro-North, Metro-North has decided to seek a settlement with just one person, Mr. Smalls. It is no coincidence that Mr. Smalls also happened to be the potential plaintiff in the greatest position to undermine Metro-North s defenses. A settlement of this nature, where one defendant has essentially bought off a material witness through an early settlement not made available to any other plaintiff, clearly raises questions of Mr. Smalls potential bias in favor of his employer, Metro-North, of which the remaining plaintiffs are entitled to explore through discovery and before the jury at trial. Obviously, the terms of his secret settlement with Metro-North are integral to this issue and therefore must be disclosed in the interest of fairness and in accordance with New York s liberal rules governing discovery. Under the particular circumstances of this case, those interests 3 FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 far outweigh any countervailing public policy that would allow Metro-North and Mr. Smalls to hide behind the confidentiality provisions of their settlement agreement. COUNTERSTATEMENT OF FACTS This matter arises from a tragic accident on the Metro-North Railroad which occurred on February 3, 2015 at the Commerce Street grade crossing on the Harlem Line. On that evening, a northbound commuter train struck a motor vehicle that had stopped on the tracks with such force that it caused multiple 2,000 pound segments of the electrified third rail to lift up, penetrate the motor vehicle and then the train itself, causing a fire in the first car of the train. As a result, six people died and dozens more were injured. Multiple lawsuits were filed against, inter alia, defendant-appellants, Metro- North Commuter Railroad, Metropolitan Transportation Authority, Argent Ventures LLC, Midtown TDR Ventures and Steven Smalls, the engineer-operator of the train (all of whom are now represented by Landman Corsi et al.) alleging negligence in causing or contributing to this accident. These allegations include claims involving the failure to Metro-North to maintain the crossing in a reasonably safe manner with respect to visibility of the crossing, their failure to properly control the traffic light sequence at the crossing, the failure to maintain and install a frangible third rail which should have broken off in pieces as opposed to what occurred herein, as well as claims against Smalls for his negligent operation of the train in failing to slow down and avoid or mitigate the accident. 4 FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 Eventually, the Plaintiff s Steering Committee was established to oversee all discovery matters related to liability in this action (A 32-33). Among those bringing claims for the injuries sustained in the accident was defendant Steven Smalls, the aforementioned train engineer. He retained The Kantor Law Firm, PLLC, which instituted an action of behalf on Mr. Smalls and his wife against the Town of Mount Pleasant, the County of Westchester, Argent Ventures and Midtown TDR Ventures, LLC (some of which are represented by Landman Corsi, the attorney for Metro- North and Smalls for the purposes of this appeal). Mr. Kantor went so far as to request participation in Plaintiffs Steering Committee, a request which the Committee declined due to the apparent conflict of interest in sharing strategy and preparation of experts with an attorney representing a party who was simultaneously being sued as a defendant. In a letter to Justice Lefkowitz dated May 13, 2016, Mr. Kantor made clear that he reserved his right to file additional claims against Metro-North, a right Mr. Smalls possessed under the Federal Employees Liability Act. Attempts to move forward with discovery in this case have been consistently thwarted. Initially, due to the pending NTSB investigation, the municipal defendants demurred in serving any substantial documentary discovery, citing investigative privilege concerns during the pendency of the investigation. Even after the NTSB issued its final report on July 25, 2017 (nearly 2 ½ years after the accident), the defendants have failed to satisfy their discovery obligations, resulting in a great deal of 5 FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 motion practice before Justice Lefkowitz and the service of multiple Notices of Appeal by defendants. Earlier this year, the Plaintiffs Steering Committee learned that Mr. and Mrs. Smalls had settled their claims against Metro-North and as a result, would not be filing a Complaint against it. It is noteworthy that Metro-North chose to settle the claims of Smalls without ever having offered a penny in settlement to any of the other plaintiffs in the case, despite the enormity of the damages involved. When plaintiffs demanded a copy of the settlement agreement in advance of Smalls deposition (A 95), Metro-North resisted, resulting in the Court ordering both Metro-North and Smalls to produce the documents for an in camera inspection. Metro-North moved to renew and/or reargue that initial order, which by an Order entered May 23, 2018, was denied and the Court again directed Metro-North to provide a copy of the settlement agreement to the Court for in camera review (A 11). As a result of that review, the Court ordered the documents to be disclosed on July 9, 2018 (A 30). The present Notices of Appeal ensued and this Court subsequently granted Metro-North s motion confirming that the automatic stay was in effect staying enforcement of the Court s July 9, 2018 Order pending appeal (2018 NY Slip Op 80911 [U][Aug. 20, 2018]). 6 FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 ARGUMENT I. Upon its careful in camera review of the document, the motion court properly directed defendant-appellants Metro-North and Smalls to produce a copy of their settlement agreement. To be clear, it takes no great insight or imagination to recognize exactly what is happening here. To put it mildly, it is no coincidence that Metro-North chose to settle just one case (that of Mr. Smalls) to this point, while not even engaging an any settlement negotiations with any of the other scores of plaintiffs. An overwhelming inference exists that Metro-North did not want Mr. Smalls, whom they now simultaneously represent, to formally come forward with any claims against Metro- North in this action, obviously based upon his own unique knowledge and experience as an employee and engineer for the railroad. Having settled his claims (before he even had to file a Complaint against it), Metro-North now wishes to present Mr. Smalls as witness on its behalf, desperately hoping to prevent the jury from learning about Mr. Smalls potential negligence claims in this case against Metro-North and his subsequent payout as a result. Viewed in this case, Metro-North and Smalls alleged concerns about confidentiality must be revealed as hollow (see Appellants Brief, at 11-12). Every witness would like matters that could undermine his or her credibility to be kept “confidential.” However, such an argument should never properly be used a sword to prevent a jury from learning about a witness potential bias or motive to testify. Indeed, the situation herein is no different than if the government in a criminal case 7 FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 were to argue that a plea deal which granted immunity to a witness against a defendant in a criminal case should be withheld from discovery because the witness was counting on privacy when he made the deal. Obviously, the defendant in that case has every right to bring this information to light so a jury can fairly evaluate a witness testimony (see People v Mazyck, 118 AD3d 728 [2d Dept 2014][jury could properly consider the fact that witness testified pursuant to a cooperation agreement]; People v Choi, 137 AD3d 808, 809 [2d Dept 2016][the People were properly permitted to elicit the bolstering aspect of the cooperation agreement entered into by the witness, and the introduction of the written cooperation agreement into evidence was proper]); said plainly, failure by an attorney to do so would likely constitute legal malpractice. The case law is clear that settlement agreements, even those containing confidentiality provisions, are not automatically exempt from disclosure, notwithstanding the existence of a general public policy that favors the enforcement of settlement agreements pursuant to their terms (see Osowski v AMEC Constr. Mgmt., Inc., 69 AD3d 99, 106 [1st Dept 2009]; Mahoney v Turner, 61 AD3d 101, 104 [1st Dept 2009]). In Mahoney, this Court said that “disclosure of the terms of a settlement agreement by a settling party to a nonsettling party may be appropriate, despite the presence of a confidentiality clause in the agreement, where the terms of the agreement are ‘material and necessary to the nonsettling party s case” (61 AD3d at 104 [directing in camera inspection of settlement agreement where certain defendants 8 FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 alleged that plaintiff and other defendants were “improperly colluding”], citing Masterwear Corp. v Bernard, 298 AD2d 249, 250 [1st Dept 2002][directing disclosure of codefendant s settlement agreement notwithstanding that it contained a confidentiality provision]). On this appeal, Metro-North does not contest the fact that its settlement agreement with Mr. Smalls is material and necessary because it goes to Mr. Smalls bias and it could properly be used for impeachment purposes (Appellants Brief, at 18). Indeed, it expressly acknowledges that Mr. Smalls will be “subject to arguments at trial that he is an interested witness with a ‘motive to shield himself from blame ” (id. at 18-19, quoting Coleman v N.Y.C. Transit Auth., 37 NY2d 137, 141-143 [1975]). It further posits that the “Confidential Settlement Agreement entered into with Mr. Smalls becomes just another possible vehicle for Plaintiffs to try to discredit Mr. Smalls testimony at trial based on his alleged bias” (id. at 19). Thus, Metro-North makes no attempt to dispute the relevance of the settlement agreement, nor could it reasonably do so. After all, the Court of Appeals has noted that settlement agreements are admissible to show collusion between parties (see Matter of Eighth Jud District Asbestos Litigation, 8 NY3d 717, 721 [2007][permitting introduction of high-low settlement into evidence as “courts and commentators alike have acknowledged that secretive agreements may result in prejudice to the nonagreeing defendant (in this case, plaintiffs) at trial, distort the true adversarial nature of the litigation process, and cast a cloud over the judicial system”]). 9 FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 Likewise, Smalls secretive agreement with Metro-North would result in prejudice against plaintiffs as Smalls settlement shows the true adversarial nature between Smalls and Metro-North against plaintiffs interest, as well as his bias towards Metro- North, and is thus highly material to his credibility should he testify that Metro-North was not negligent. It should be noted, that any concerns over the ultimate admissibility at trial of the settlement agreement, or certain portions of the settlement agreement, would be premature at this juncture and could not provide a proper basis for Metro-North s refusal to disclose the agreement. It is well established that the standards governing disclosure are far more liberal than those governing admissibility (see e.g. Elie v City of New York, 92 AD3d 716, 718 [2d Dept 2012][inadmissibility is not a proper objection to a discovery demand]; see also Twenty Four Hour Fuel Oil Corp. v Hunter Ambulance Inc., 226 AD2d 175, 176 [1st Dept 1996]). More importantly, Metro-North was properly directed to produce the settlement agreement here because Metro-North has failed to demonstrate that the settlement agreement will not contain relevant information, which is the primary consideration for determining whether a settlement agreement should be disclosed (see Osowski, 69 AD3d at 106; Masterwear Corp., 298 AD2d at 250). Nevertheless, on appeal, Metro-North contends that the relevance of the settlement agreement is outweighed by the “strong public policy favoring settlements” (Appellants Brief, at 11). However, the Courts have repeatedly made it clear that such policy, although important, cannot be used to justify the withholding of a 10 FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 settlement agreement from disclosure where the agreement, or its terms, are material and necessary to the nonsettling party s case claims (see Mahoney, 61 AD3d at 104, citing Masterwear Corp., 298 AD2d at 250; Osowski, 69 AD3d at 106). As such, Metro- North incorrectly faults the motion court for its purported failure to consider the public policy favoring settlements. It should be added that Metro-North s near-exclusive reliance on the strong public policy favoring settlements is particularly misplaced under the specific factual circumstances at issue here. While the Court of Appeals has often referenced the strong public policy favoring enforcement of settlement agreements, it has done so in the context of a situation where all of the interested parties have come together and knowingly and voluntarily negotiated a compromise resolving their dispute (see e.g. Denburg v Parker Chapin Flattau & Klimpl, 82 NY2d 375, 383 [1993]; Hallock v State of New York, 64 NY2d 224, 230 [1984]). In such cases, where there has been a “negotiated compromise of a dispute…, there is a societal benefit in recognizing the autonomy of parties to shape their own solution to a controversy rather than having one judicially imposed” (Denburg, 82 NY2d at 383). However, there is no comparable societal benefit to be found here where the settlement agreement at issue was not negotiated by all of the interested parties, but instead, was negotiated in secret by the two primary defendants in this action. As mentioned above, the only reasonable inference that can be drawn from the circumstances surrounding the settlement is that Metro-North settled with Mr. Smalls, and only Mr. Smalls, even before he 11 FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 commenced an action against it in order to avoid the uncomfortable situation of publically having its own train operator formally accuse Metro-North of negligence. Moreover, by buying Mr. Smalls off early, Metro-North seeks to better protect itself from the remaining plaintiffs claims by effectively taking over Mr. Smalls representation. The strong public policy in favor of settlements is not intended to provide protection for settling parties in these circumstances by allowing them to use a confidentiality provisions to shield relevant, discoverable information from nonsettling parties. The case law cited by Metro-North on appeal does support its contention that the motion court abused its discretion in directing the disclosure of the settlement agreement after it conducted an in camera review of its contents. The case chiefly relied upon by appellants, In re Matter of East 51st St. Crane Collapse Litig. (31 Misc3d 406 [Sup Ct, NY County 2011])(Appellants Brief, at 13-14) does not constitute binding authority on this appellate court, and significantly, it has never been followed or cited as persuasive by any subsequent decision at any level. To the contrary, the only case that has ever cited the decision, G ardino Graco Children Prod c Inc., 50 Misc3d 645, 647 [Sup Ct, Suffolk County 2015]), expressly declined to follow it, holding that the “parties interest in keeping the details of their settlement confidential do not constitute good cause to the extent that it outweighs th[e] public interest” in the lawsuit (50 Misc3d at 649). The Court in Guardino emphasized that it was particularly inappropriate to conceal the terms of a settlement agreement “in product 12 FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 liability and other tort actions where the information might alert other consumers to potential defects” (50 Misc3d at 649, citing Matter of Twentieth Century Fox Film Corp., 190 AD2d 483, 486 [1st Dept 1993] (internal quotations omitted)). The Court noted that the strong public interest in the lawsuit, which involved the death of an infant, favored disclosure in that case. This reasoning is equally applicable to this case where there is clearly a strong public interest in this lawsuit arising out of a collision between a Metro-North commuter train and a private vehicle on the railroad tracks, which resulted in numerous deaths and even more serious injuries. In addition, the circumstances at issue in In re Matter of East 51st St. Crane Collapse Litig. are readily distinguishable from those at issue in this case. There, the settlement agreement at issue was made on the eve of trial between one wrongful death plaintiff and certain of the defendants. There is no indication in that decision that the decedent, Bleidner, was himself negligent in bringing about the fatal crane collapse, whereas here, multiple plaintiffs have asserted negligence claims directly against Mr. Smalls. Furthermore, there is nothing in the Crane decision that would support the inference that Bleidner s settlement was part of a strategic effort by some or all of the defendants to coopt a critical witness on the eve of trial so they could better control his testimony. Here, in contrast, Mr. Smalls retained an attorney to bring his own negligence claims against Metro-North, but Metro-North offered him, and only him, a secret settlement to avoid the embarrassment of publicly being 13 FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 accused of negligence by its own employee. The difference in timing is also significant. In Crane, discovery had already been completed and the settlement was entered after the parties met before a JAMS mediator. Throughout that time period, the interests of Bleidner s estate and the defendants were diligently represented by separate counsel with adverse interests. As such, there was no obvious reason in Crane for the Court or anyone else to doubt that the settling defendants did not have a reasonable basis for valuing Bleidner s claims and assessing their liability (which was clear under Labor Law § 240 [1], at least as against the owner of the building and general contractor), and for its decision to settle Bleidner s claims but not the claims of all plaintiffs at that time. In contrast, here, there had been no discovery and Mr. Smalls had not even commenced an action yet against Metro-North when they entered their settlement agreement and Metro-North effectively took over his representation, ensuring that its interests would be aligned throughout this entire litigation. These circumstances, unlike those in Crane raise a strong inference that Metro-North settled with Mr. Smalls early to silence his claims against it. In any event, Metro-North simply fails to put forth a convincing argument that this Court should be the first and only Court to take guidance from the decision in In re Matter of East 51st St. Crane Collapse Litig. Another case relied upon by appellants, In re New York County Data Entry Worker Product Liability Lit. (162 Misc2d 263 [Sup Ct, NY County 1994], affirmed 222 AD2d 381 [1st Dept 1995][while noting that there was no dispute that the amount of the 14 FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 settlement had to be disclosed]) is misplaced. As this Court emphasized in a later decision where it affirmed the motion court s order directing the disclosure of a confidential settlement agreement, expressly declining to follow In re New York County Data Entry Worker Product Liability Lit., a “confidential” settlement agreement will be subject to disclosure where it is material and necessary to the resolution of the claims or defenses in the action (see Osowski, 69 AD3d at 106). In any event, In re New York County Data Entry Worker Product Liability Lit. can be distinguished on its facts because the Court there concluded that the settling parties probably would not be relevant witnesses in the case. Clearly, the situation here presents the exact converse: Mr. Smalls, the engineer of the train, is undoubtedly a crucial witness with knowledge not only of what occurred that day, but also the practices of the railroad at that crossing. Metro-North s citation to Mahoney v Turner (61 AD3d 104 [1st Dept 2009]) is equally misplaced. In that case, an injured worker sued an owner and general contractor who, in turn, sued certain subcontractors. Plaintiff entered into a settlement agreement with the defendants and the subcontractor sought a copy of the settlement agreement, which defendants refused to disclose citing its confidentiality provisions. The trial court required defendants to disclose the amount of the settlement but refused to compel defendants to disclose the entire agreement. The First Department overturned the court s decision, stating that an in camera inspection should be conducted to determine the relevancy of the settlement agreement, especially in light of the subcontractors argument that plaintiff was colluding with 15 FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 defendants against the subcontractor. In doing so, the First Department once again emphasized that “disclosure of the terms of a settlement agreement by a settling party to a nonsettling party may be appropriate, despite the presence of a confidentiality clause in the agreement, where the terms of the agreement are ‘material and necessary to the nonsettling party s case ” (61 AD3d at 104, citing Masterwear Corp., 298 AD2d at 250 [directing disclosure of codefendant s settlement agreement notwithstanding that it contained a confidentiality provision]). While the Court recognized the need to balance the parties conflicting interests, it did not remotely suggest that a settling party s interest in confidentiality outweighs a nonsettling party s interest in obtaining the settlement agreement. Indeed, the Court noted that, where appropriate, the public policy concerns favoring settlements could be “accommodated short of denying a non-settling defendant information that is material and relevant to its case,” by, for example, entering a protecting order pursuant to CPLR 3103 (a) limiting the disclosure of the settlement agreement to the nonsettling parties and their counsel (id. at 106). Overall, there is nothing in Mahoney that demonstrates that the motion court abused its discretion in directing the disclosure of the settlement agreement after its own careful in camera review showed that the settlement agreement contained material and necessary information. Additional case law supports the motion court s decision below. In Polsky v 145 Hudson Assoc. (2015 NY Slip Op 32071 [U], NY Misc Lexis 4001 [Sup Ct, NY 16 FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 County 2015]), the Court ordered the disclosure of a settlement agreement based precisely on the reasoning argued by plaintiffs herein. The Court pointed out that: “[the defendant] Board members may be witnesses regarding the parties claims, counterclaims, or defenses. Evidence of the Board ‘accepting, or offering or promising to accept, any valuable consideration in compromising or attempting to compromise a claim, CPLR 4547, by the Board comparable to a claim by plaintiffs thus may reveal a bias relevant to Board members credibility. Therefore, even if the court determines that the Offering Plan is unambiguous, the settlement agreement still may be material and necessary for impeachment purposes” (id. at *3, citing Matter of Midland Ins. Co., 87 AD3d 487, 491 [1st Dept 2011]; Mahoney, 61 AD3d at 104; American Re-Ins. Co. v United States Fid. & Guar. Co., 19 AD3d 103, 104 [1st Dept 2005]). In addition to these cases, further support for disclosure of the settlement agreement in this particular case, which involves claims asserted against Metro-North, a public entity, can be found in the law related to FOIL requests under the Freedom of Information Law. This law is abundantly clear that there is NO CONFIDENTIALITY regarding settlement agreements involving public authorities like Metro North (see Palomino v Gill, 4 Misc3d 1029 [A] [Sup Ct, NY County 2004]). In Palomino, the Court rejected the confidentiality provision of a settlement agreement and required disclosure of a settlement agreement made between a coalition of residents of Battery Park and the Battery Park City Authority. As the court explained, as set forth below, confidential agreements with public authorities cannot be honored. 17 FILED: WESTCHESTER COUNTY CLERK 04/12/2024 12:37 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 954 RECEIVED NYSCEF: 04/12/2024 The Court explained that the Freedom of Information Law “provides ‘that government is the public s business and * * * the public * * * should have access to the records of government ” Public Officers Law § 84. To promote open government and public accountability, it imposes “a broad duty” on government to make its records publicly available (see Matter of Gould v New York City Police Dept, 89 NY2d 267, 274 [1996]); see also Matter of Newsday v Empire State Development Corp., 98 NY2d 359, 362 [2002]). Indeed, all government records are presumptively open for public inspection and copying unless an enumerated exemption contained in Public Officers Law § 87(2) insul