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T.A. Ahern Contrs. Corp. v Dormitory Auth. of State of N.Y. (2009 NY Slip Op 29125)

Supreme Court, New York County, March 19, 2009
APPEARANCES OF COUNSEL
Westermann Hamilton Sheehy Aydelott & Keenan, LLP, Garden City (Robert J. Fryman and Seth D. Rosmarin of counsel), for plaintiff. Michael A. Cardozo, Corporation Counsel, New York City (Lawrence B. Spielberg of counsel), for defendant.
{**24 Misc 3d at 417} OPINION OF THE COURT
Eileen A. Rakower, J.
Plaintiff, T.A. Ahern Contractors Corp., brings this action for breach of contract, quantum meruit, and unjust enrichment in connection with a public improvement construction project known as Jacobi Medical Center Modernization Program-Phase I (the project or project), located in the Bronx, New York. Ahern alleges that, pursuant to the parties' contract, Ahern was to construct a portion of the project over 22 months, beginning in April of 2002, and that various breaches of contract by defendant, the Dormitory Authority of the State of New York (DASNY), delayed Ahern's completion of the project, causing Ahern to incur damages.
Presently before the court are motions by both Ahern and DASNY for orders pursuant to CPLR 3124, compelling one another to produce electronic and other discovery relating to the
T.A. Ahern Contrs. Corp. v Dormitory Auth. of State of N.Y. (2009 NY Slip Op 29125)
[*2]project.
With respect to Ahern's motion, Ahern seeks the production of archived e-mails from DASNY employees relating to the project and other electronic documents. Ahern asserts that project-related e-mails to and/or from DASNY employees will demonstrate that DASNY caused Ahern to be
delayed in its performance of the contract.[FN1] In support of its motion, Ahern submits an amended notice of motion; affirmation of Robert J. Fryman in support and affirmation of good faith, with copies of the pleadings; Ahern's documents requests and DASNY's objections and responses; copies of compliance conference orders; and letters from Ahern and DASNY regarding the present discovery dispute annexed as exhibits. DASNY has submitted an affirmation in opposition to Ahern's motion to compel, annexing as exhibits correspondence between counsel for Ahern and DASNY regarding the present discovery dispute; DASNY's privilege log; and DASNY's own document request to Ahern. In addition, DASNY has annexed affidavits from Leigh Favitta, Director of Information Systems for DASNY; and Heidi B.{**24 Misc 3d at 418} Grygiel, Esq., Evidence Acquisition Director of the Office of the Chief Information Officer for the New York City Law Department, counsel for DASNY. Ahern submitted a reply affirmation in further support of its motion.
In response to Ahern's request for electronic data, DASNY has identified 27 DASNY employees whose e-mail accounts are likely to contain information relevant to the project. However, according to DASNY, the great majority of these employees did not create project

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