DECISION & ORDER Plaintiff Hampshire Recreation, LLC, moves, pursuant to CPLR 3121, CPLR 3124 and CPLR 3126, for an order compelling defendants The Village of Mamaroneck and The Village of Mamaroneck Planning Board (hereinafter “defendants”, “Village of Mamaroneck” and/or “Planning Board”) to respond in full to plaintiff’s demands for documents, interrogatories and notices of depositions. Plaintiff is also requesting for the Court to find that the “deliberative process” privilege and the legislative privilege do not apply to the information sought. Finally, with respect to any documents allegedly protected by privilege, plaintiff is requesting for the Court to direct defendants to produce a privilege log pursuant to CPLR 3121(b). Papers Considered NYSCEF DOC NO. 82-98. 1. Notice of Motion/Affirmation in Support of David J. Cooper, Esq./ Exhibits AK 2. Affirmation in Opposition of Robert A. Spolzino, Esq./ Memorandum of law 3. Affirmation of David J. Cooper, Esq. in Reply/Exhibit A FACTUAL AND PROCEDURAL BACKGROUND The Court assumes the familiarity with the record. The facts related to the claims have been set forth in prior decisions/orders thus far issued in motions sequence numbers 1 and 2 by this Court. The pertinent facts are as follows: In 2010, plaintiff purchased the 106-acre Hampshire Country Club property (property, or site) which is located in the Village of Mamaroneck, New York at 1025 Cove Road, a/k/a 1107 Cove Road N., Mamaroneck, New York 10543. NYSCEF Doc. No.1, Complaint, 14. Plaintiff purchased the property, “under the reasonable expectation that, with the R-20 Zoning in place, it could be developed for residential purposes.” Id., 2. In June 2015, plaintiff submitted a proposal to defendants for a “planned residential development” (PRD) Project, which would result in construction of a 105-unit residential development at the property site. On May 7, 2020, the Planning Board adopted a New York State Environmental Quality Review Act (SEQRA) Findings Statement and a series of Resolutions, determining that the Village of Mamaroneck’s local regulations prohibit any residential development on the property. In May 2021, plaintiff filed a summons and complaint, alleging that the Planning Board’s denial of the proposed residential development plan constituted a regulatory “taking” of plaintiff’s property without compensation pursuant to Article 1, Section 7 of the New York State Constitution. The complaint asserted that the Planning Board’s refusal to permit development on the property was arbitrary, capricious, and contradicted by or not supported by substantial evidence, would erase nearly all of the property’s economic value, and would interfere with plaintiff’s distinct investment-backed expectation of significant profits from developing a residential project on the property consistent with the permitted uses under the Village Code. Plaintiff had alleged that the value of the property in the R-20 District if developed with multiple residences would be approximately $63.5 million. However, upon adopting the findings and resolutions, the value of the property was reduced to approximately $5.4 million. Defendants moved, pre answer, pursuant to CPLR 3211(a)(1) and (7), to dismiss the complaint based upon the documentary evidence and for failure to state a cause of action. This Court denied defendants’ motion for an order dismissing the complaint, concluding that the complaint sufficiently stated a cause of action against the Planning Board for a regulatory taking. See NYSCEF Doc. No. 43. Although defendants had argued that plaintiff could not establish a claim because only one option for development was denied by the Planning Board, leaving other alternatives available, plaintiff had alleged that “no less than sixteen alternative densities, layouts and housing types were evaluated by the Planning Board.” Id. at 4. Further, plaintiff had also claimed that “the Planning Board has stripped it of its ability to use the property for residential purposes in accordance with R-20 zoning, which it is undisputed that the property is zoned for, which results in a de facto rezoning of the property precluding any residential use.” Id. Defendants moved for leave to renew the motion to dismiss the complaint, and, upon renewal, for dismissal of the complaint. By decision and order dated May 30, 2023, this Court denied the motion. See NYSCEF Doc. No. 78. As relevant for the motion, the record indicates that in 2019, the Village’s Board of Ethics launched an investigation because one of the Planning Board members who had voted to disprove the proposal lived adjacent to the property. During the investigation, an email between the Planning Board members surfaced which stated the following, in pertinent part: “And I think it’s past time to wrestle control of this from the consultant. He has been agreeing to things with the applicant that we don’t know about or agree with.” After the investigation concluded, the Board of Ethics found, among other things, that the member should not have participated in the decision since she had a conflict of interest as a neighbor. The record also indicates that plaintiff commenced a separate proceeding pursuant to Article 78, seeking to annul and reverse the Planning Board’s SEQRA’s Findings Statement, as well as the Denial Resolutions, as arbitrary, capricious and a violation of the substantive requirements of SEQRA. See Index #55933/2020. On November 17, 2022, the Honorable Linda Jamieson granted the petition, to the extent of remanding the matter to the Planning Board to reconsider and reassess certain issues in the proposed development plan. NYSCEF Doc. No. 71, Article 78 Decision. The decision referenced, in relevant part, standards used by Chazen, the Planning Board’s engineers, and comments from a law firm hired by a neighborhood opposition group. The Court specifically noted that alleged evidence by interested community members would be inadequate to support an agency’s ultimate conclusion, and remanded the matter to the Planning Board with that sentiment. Instant Motion Plaintiff moves to compel defendants to respond to discovery requests, interrogatories and to produce witnesses for deposition. Plaintiff argues that its requests are material and necessary to establish its regulatory taking claim. For example, information such as the Village’s acknowledgments that the property could be used for residential purposes and the other permits issued for other residential purposes in 2010 would be relevant to the reasonableness of plaintiff’s expectation to use the property for residential purposes. As another example, the Planning Board members’ communications with the neighborhood groups opposed to plaintiff’s development, the engineers’ comments supporting plaintiff’s proposal, and the Ethic Board’s investigation into the voting Planning Board member who was a neighbor of the property, would also be relevant to the alleged preordained rejection of the site approval. Plaintiff alleges that defendants are knowingly holding back material and necessary information and that they are not willing to engage in a good faith exchange of information in this action. For example, in 2010 the Village also had considered purchasing the property, and the Village’s consultants prepared the BFJ Report which provided recommendations as to the potential residential development of the property. In response to the discovery demands here, defendants have produced a redacted “BFJ Report.” However, this BFJ Report was produced in its entirety for the Article 78 proceeding. In addition, defendants did not submit a privilege log, nor did they produce any witness in response to plaintiff’s demands. In opposition, defendants argue that the deliberative process privilege shields disclosure of almost all of the documents demands, interrogatories and the production of witnesses. For example, defendants state that “[d]ocument Demands 1, 2, 3, 7, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, and 20 and Interrogatories 4, 5, 6, 7, 8, and 9 concern communications to and from government officials that are protected by the legislative and deliberative process privileges.” Defendants also allege that the demanded material is not relevant to the action as it does not relate to the proposed “takings claim.” They continue that the discovery has no bearing on the issues before the Court. For example, they argue that the Village’s potential purchase and expectation for the property has no bearing on plaintiff’s expectations for the Property. Furthermore, they claim that documents related to an investigation by the Village Board of Ethics of one of the members of the Planning Board has no bearing in this action as the plaintiff’s proposals would have been denied, even without her vote. They also claim that the demands are overbroad and unduly burdensome, as the Village of Mamaroneck has millions of emails and documents. Party Witnesses Plaintiff served defendants with a notice designating the Mayor of the Village of Mamaroneck and the four planning board members who reviewed the Project, as party witnesses. Plaintiff alleges that it had the expectation to develop the Property with residences and testimony from these witnesses is crucial to its regulatory taking claim. For example, Mayor Murphy has allegedly been outspoken about the Village’s desire not to have any residential development on the Club Property. Defendants claim that they should be allowed to designate witnesses and that the proposed witnesses are protected from being deposed due to the legislative and deliberative process privileges. DISCUSSION I. Motion to Compel “Disclosure in civil actions is generally governed by CPLR 3101 (a), which directs: [t]here shall be full disclosure of all matter material and necessary to the prosecution or defense of an action, regardless of the burden of proof.…The test is one of usefulness and reason.” Forman v. Henkin, 30 NY3d 656, 661 (2018) (internal quotation marks and citations omitted). CPLR 3101 (a) “embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise.” Id. at 661 (internal quotation marks and citation omitted). “The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court….” Montalvo v. CVS Pharm, Inc., 102 AD3d 842, 843 (2d Dept 2013) (internal quotation marks and citations omitted). Pursuant to CPLR 3124, “[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article…the party seeking disclosure may move to compel compliance or a response.” On a motion brought pursuant to CPLR 3124, the burden is on the party seeking the disclosure to establish a basis for the production sought. See Foster v. Herbert Slepoy Corp., 74 AD3d 1139, 1140 (2d Dept 2010) (internal quotations omitted) (“It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims”). “[T]he party challenging disclosure bears the burden of establishing that the information sought is immune from disclosure.” Ambac Assurance Corp. v. DLJ Mortg. Capital, Inc., 92 AD2d 451, 452 (1st Dept 2012). Courts have found that a party is not required to respond to a discovery demand that is “palpably improper…[in that it is seeking] irrelevant information, or [is] overbroad and burdensome.” Montalvo v. CVS Pharm, Inc., 102 AD3d at 843. Deliberative Process The deliberative process privilege “is also known as the ‘inter-agency or intra-agency materials’ exemption under [FOIL]…[and] seeks to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers.” Mosey v. County of Erie, 148 AD3d 1572, 1575 (4th Dept 2017). Although some courts have applied the deliberative process privilege to discovery in civil actions, the Court of Appeals “has never created nor recognized a generalized deliberative process privilege.” Id. (internal quotation marks omitted). Contrary to defendants’ contentions, in this case this Court finds that the deliberative process is not applicable to bar the requested discovery. Even if the deliberative process was applicable, “it is not absolute. In determining whether to preclude discovery of information that qualifies for the privilege, the court must balance the public interest in nondisclosure against the need of the particular litigant for access to the information.” Dukes v. New York City Emples. Ret. Sys., 331 FRD 464, 471 (SD NY 2019) (internal quotation marks omitted). Courts have found that “when the decision-making process itself is the subject of the litigation, the deliberative process privilege cannot be a bar to discovery.” Id. Here, plaintiff’s claim stems from the Planning Board’s decision-making process. As defendants’ decision-making process is the subject of this litigation, the deliberative process privilege would, in any event, not be available. Furthermore, “[g]overnmental privilege must ordinarily be invoked by a department head or other responsible agency official, after a personal review of the documents, in an affidavit stating a factual basis for the claim of injury to legitimate government interests flowing from disclosure. Assertion of privilege by the attorney for the City or by the author of the document is insufficient. ” Grossman v. Schwarz, 125 FRD 376, 382 (SD NY 1989) (internal citations omitted). Here, defendants have only submitted an attorney affirmation and a memorandum of law, which is insufficient to meet its burden in asserting this privilege. Thus, the Court finds that the deliberative process privilege does not apply to the information sought in plaintiff’s discover demands. Legislative Privilege Defendants claim that the legislative privilege acts to bar the documents generated in response to the Village’s possible purchase of the Property and the Planning Board’s review of the Project, and that it also acts to bar the depositions. They cite to, Humane Society of New York v. City of New York, 188 Misc 2d 735, 738 (Sup Ct, NY County 2001), which held that “[t]he Speech or Debate Clause applies by its terms only to ‘members’ of the Legislature. However, a similar common-law legislative privilege is applicable to government officials in the executive branch when engaged in legislative activities.” Here, however, defendants have not established how they were engaged in legislative activities. Accordingly, the legislative privilege does not bar the requested discovery and depositions. Party Witnesses “[A] municipality has the right to determine which of its officers or employees with knowledge of the facts may appear for a deposition.” Cea v. Zimmerman, 142 AD3d 941, 922 (2d Dept 2016). Here, however, plaintiff served defendants on September 30, 2022 with a designation of defendant deponents. To date, defendants have yet to designate a witness. Under these circumstances, defendants are ordered to produce Tom Murphy, for the Village of Mamaroneck, and must also produce one of the four Planning Board members who voted on plaintiff’s application, to be deposed as a party witness for the Village of Mamaroneck Planning Board. Document Demands and Interrogatories Demands 1-3 and Interrogatory 1 seek information related to the Village’s possible acquisition of the Property. Demands 4-6 involve permits issued by the Village to other landowners living in the neighborhood. Defendants claim that this material is irrelevant. The Court finds plaintiff has met its burden to establish that the material requested is material and necessary to plaintiff’s claim. As discussed above, this Court concluded that the complaint sufficiently alleged a cause of action for a regulatory taking. These document demands relate to the reasonableness of plaintiff’s development expectation at the time of purchase. As noted, the Village was also interested in purchasing the property and hired consultants to advise them on possible development, including the maximum residential build-out. The unredacted version of the BFJ Report has already been provided to the Court in the Article 78 proceeding, and the first paragraph states that a “The Hampshire Country Club property, one of the largest single undeveloped properties along the Sound shore, is currently for sale. The Town and Village are jointly exploring the possibility of acquiring the 108-acre site and have asked BFJ Planning to analyze potential scenarios for future development of the property. This report discusses three hypothetical build-out scenarios that demonstrate a range of possibilities on the site.” Despite defendants’ contention, despite the number of documents requested, the Court does not find the requests to be burdensome. See All-Waste Systems, Inc., v. Abrams, 155 AD2d 401, 402 (2d Dept 1989) (internal quotation marks omitted) (“A subpoena is not rendered invalid merely because it requires production of a substantial number of documents. Relevancy, and not quantity, is the test of the validity of a subpoena”). However, the Court does find that document demands 1 and 2 are overly broad as currently stated. Nonetheless, to the extent that demand 3 and interrogatory 1 are limited in time frame and scope, they must be produced. Accordingly, to the extent not already provided, defendants shall produce documents and communications related to the valuation of plaintiff’s property, including offers or bids to purchase plaintiff’s property between 2005 and 2010. Demands 7-17 and interrogatories 2-9 request communications between the Planning Board members, consultants, elected officials and the public concerning the Project. Defendants claim this information is irrelevant to plaintiff’s investment backed expectations. They further argue that the material is unnecessary as the only issue is whether the action taken by the Planning Board effectuated a taking, and this action was already set forth in its denial of the proposal. Courts have held that when considering the elements of a takings claim, “in analyzing the character of the governmental action, courts should focus on the extent to which a regulation was enacted solely for the benefit of private parties as opposed to a legislative desire to serve important public interests.” Community Hous. Improvement Program v. City of New York, 59 F.4th 540, 555 (2d Cir 2023) (internal quotation marks omitted). Thus, the requested discovery is relevant to plaintiff’s taking claim as plaintiff has alleged that defendants acted in bad faith by ignoring opinions from their consultants that were favorable to plaintiff’s proposal and relying on speculative community objections. In sum, demands 10-14 are communications between defendants and their consultants, communications between defendants and the neighborhood group opposed to the Project, and communications made by members of the planning board concerning draft versions of the Findings and Denial Resolutions, and must be produced.1 Demand 16 consists of communications between the Planning Board and residents concerning the Project and also must be produced. However, demands 7-9 are overbroad and, to the extent still outstanding, may be requested again with more parameters and a limited time frame. Demand 15 has already been addressed through demands 7 and 12. Demand 17 is already requested as part of demand 9 and is also overboard. Demands 18-20 which involve documents related to the Board of Ethics Investigation, are material and necessary to plaintiff’s claim and must be produced. In the Article 78 proceeding, the Court also addressed the issue of the conflicted Planning Board member noting that, although she was only one vote, her active vocal participation may have influenced other members. The Court also expressed concern with that Board member’s email regarding taking control away from the consultant, who appears to be agreeing with plaintiff’s proposal.2 Defendants have objected to many of the interrogatories as not relevant, subject to the deliberative process privilege or the subject to the attorney-client privilege. The Court finds that the interrogatories are relevant and that the deliberative process privilege is inapplicable. If information responsive is subject to an asserted privilege, defendants much produce a privilege log, identifying the allegedly privileged matter. See e.g. Grant v. PALJR, LLC, 64 AD3d 750, 751 (2d Dept 2009) (“to the extent that the responses to such demands may include privileged information, the defendants are entitled to an opportunity to produce and submit a ‘privilege log’”). All other arguments raised on this motion and evidence submitted by the parties in connection thereto have been considered by this court notwithstanding the specific absence of reference thereto. Accordingly, it is hereby ORDERED that plaintiff’s motion to compel is granted in part, to the extent that defendants are directed to produce the information and documents requested in the remaining outstanding Interrogatories and Document Demands 3-6, 10-14, 16, 18-20; and it is further ORDERED that the deliberative process privilege and the legislative privilege do not apply to the information sought; and it is further ORDERED that defendants shall produce the discovery demands to plaintiff on or before December 22, 2023; and it is further ORDERED that defendants must produce Tom Murphy, Mayor, and one of the members of the Planning Board with knowledge of the facts, for deposition within 45 days of service of this decision and order; and it is further ORDERED that the parties shall appear for a virtual Compliance Conference scheduled for January 30, 2024 at 9:30 a.m. Dated: November 15, 2023
