        SUPREME COURT OF THE STATE OF NEW YORK
              Appellate Division, Fourth Judicial Department

19
CA 14-01158
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


JOANN ABBO-BRADLEY, INDIVIDUALLY AND AS PARENT
AND NATURAL GUARDIAN OF DYLAN J. BRADLEY,
TREVOR A. BRADLEY AND CHASE Q. BRADLEY, INFANTS,
ZACHARY HERR AND MELANIE HERR, INDIVIDUALLY
AND AS PARENTS AND NATURAL GUARDIANS OF COLETON
HERR AND HEATHER HERR, INFANTS, AND NATHAN E.
KORSON AND ELENA KORSON, INDIVIDUALLY AND AS
PARENTS AND NATURAL GUARDIANS OF LOGAN J. KORSON,
AN INFANT, PLAINTIFFS-APPELLANTS,

                      V                             MEMORANDUM AND ORDER

CITY OF NIAGARA FALLS, ET AL., DEFENDANTS,
OP-TECH ENVIRONMENTAL SERVICES, NIAGARA FALLS
WATER BOARD, GLENN SPRINGS HOLDINGS, INC., GROSS
PHC LLC, AND SEVENSON ENVIRONMENTAL SERVICES, INC.,
DEFENDANTS-RESPONDENTS.


PHILLIPS & PAOLICELLI, LLP, NEW YORK CITY (STEPHEN J. PHILLIPS OF
COUNSEL), WATERS & KRAUS, LLP, DALLAS, TEXAS, FANIZZI & BARR, P.C.,
NIAGARA FALLS AND CHRISTEN MORRIS, EAST AMHERST, FOR
PLAINTIFFS-APPELLANTS.

PILLINGER MILLER TARALLO, LLP, ELMSFORD (JEFFREY D. SCHULMAN OF
COUNSEL), FOR DEFENDANT-RESPONDENT OP-TECH ENVIRONMENTAL SERVICES.

RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (JEFFREY F.
BAASE OF COUNSEL), FOR DEFENDANT-RESPONDENT NIAGARA FALLS WATER BOARD.

QUINN EMANUEL URQUHART & SULLIVAN LLP, NEW YORK CITY (SHEILA L.
BIRNBAUM OF COUNSEL), PHILLIPS LYTLE LLP, BUFFALO AND KLEINFELD,
KAPLAN AND BECKER, LLP, WASHINGTON, DC, FOR DEFENDANT-RESPONDENT GLENN
SPRINGS HOLDINGS, INC.

SCHNITTER CICCARELLI MILLS PLLC, EAST AMHERST (PATRICIA S. CICCARELLI
OF COUNSEL), FOR DEFENDANT-RESPONDENT GROSS PHC LLC.

HURWITZ & FINE, P.C., BUFFALO (DAVID R. ADAMS OF COUNSEL), FOR
DEFENDANT-RESPONDENT SEVENSON ENVIRONMENTAL SERVICES, INC.



     Appeal   from an order of the Supreme Court, Niagara County
(Richard C.   Kloch, Sr., A.J.), entered December 4, 2013. The order
granted the   motion of defendant Glenn Springs Holdings, Inc., for a
preliminary   injunction.
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                                                         CA 14-01158

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the provision directing
plaintiffs to afford defendants contemporaneous access to properties
for environmental sampling samples and by limiting the obligation of
plaintiffs’ attorneys to provide notice of environmental sampling to
instances “where such testing would be of assistance to the
prosecution or defense of the instant lawsuit,” and as modified the
order is affirmed without costs, and the matter is remitted to Supreme
Court, Niagara County, for further proceedings in accordance with the
following Memorandum: Plaintiffs, who live in an area in the
periphery of the Love Canal site in Niagara Falls, commenced this
toxic tort action seeking damages related to the alleged exposure of
toxins from the Love Canal site. Supreme Court granted the motion of
defendant Glenn Springs Holdings, Inc., joined in by other defendants,
seeking a preliminary injunction prohibiting plaintiffs, or their
attorneys, from conducting environmental sampling without providing
defendants with written notice of 96 hours prior to such sampling;
contemporaneous access to the sampling sites; and an opportunity to
take split samples of all such environmental samples.

      We agree with plaintiffs that the court, in issuing the
preliminary injunction, abused its discretion in permitting defendants
contemporaneous access to the site while the samples are collected
(see generally Destiny USA Holdings, LLC v Citigroup Global Mkts.
Realty Corp., 69 AD3d 212, 216). We therefore modify the order by
vacating the provision directing contemporaneous access, and we remit
the matter to Supreme Court to determine the manner in which
plaintiffs are to provide split samples to defendants. Communication
between plaintiffs’ attorneys and their consultants is protected work
product (see Beach v Touradji Capital Mgt., LP, 99 AD3d 167, 170), and
their communication with their clients also is protected by the
attorney-client privilege (see Veras Inv. Partners, LLC v Akin Gump
Strauss Hauer & Feld LLP, 52 AD3d 370, 373-374). Although plaintiffs’
claims are based upon the evidence obtained from the samples (see
generally id. at 374), we conclude that the respective privileges are
not waived. The fact “[t]hat a privileged communication contains
information relevant to the issues the parties are litigating does
not, without more, place the contents of the privileged communication
itself at issue in the lawsuit” (id. [internal quotation marks
omitted]).

     We nevertheless conclude that the court properly determined that
defendants are entitled to notice and to contemporaneous split samples
of material collected by plaintiffs herein and by plaintiffs’
attorneys with respect to samples taken from property of nonparties
insofar as that material is of assistance to plaintiffs in this
action. We note, however, that there is a discrepancy between the
order and the decision in this regard. The court’s decision
prohibited plaintiffs’ attorneys from obtaining samples from the
property of their nonparty clients in “any place in the [affected]
area that would be [of] assistance” to plaintiffs’ action herein,
without, inter alia, notice to defendants. The order, however,
requires plaintiffs’ attorneys to provide notice of sampling and
access to defendants of any sample taken, and did not contain the
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                                                         CA 14-01158

restriction that plaintiffs’ attorneys were required to provide notice
to defendants only of those samples that would assist these
plaintiffs. Inasmuch as the decision controls where, as here, it
conflicts with the order (see Del Nero v Colvin, 111 AD3d 1250, 1253),
we further modify the order accordingly, to conform to the decision.




Entered:   February 13, 2015                   Frances E. Cafarell
                                               Clerk of the Court
