The opinion
Caldone v JRM Constr. Mgt., LLC
2025 NY Slip Op 30393(U)
January 30, 2025
Supreme Court, New York County
Docket Number: Index No. 160485/2021
Judge: Mary V. Rosado
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 160485/2021
NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 01/30/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. MARYV. ROSADO PART 33M
Justice
--------------------------------------------------------------------------------X INDEX NO. 160485/2021
JOHN CALDONE,
MOTION DATE 08/21/2024
Plaintiff,
MOTION SEQ. NO. 001
- V -
JRM CONSTRUCTION MANAGEMENT, LLC,2 RECTOR
STREET (NY), LLC,PIERPONT MECHANICAL DECISION + ORDER ON
CORPORATION, MOTION
Defendant.
---------------------------------------------------------------------------------X
JRM CONSTRUCTION MANAGEMENT, LLC Third-Party
Index No. 595516/2023
Plaintiff,
-against-
PIERPONT MECHANICAL CORPORATION, ASHLAR
MECHANICAL CORP.
Defendant.
-------------------------------------------------------------------------------X
2 RECTOR STREET (NY), LLC Second Third-Party
Index No. 595822/2024
Plaintiff,
-against-
CONVENE, SENTRY CENTERS HOLDINGS LLC
Defendant.
--------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001} 84, 85, 86, 87, 88,
89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 114, 115, 116, 117, 118,
119, 120, 121, 122
were read on this motion to/for DISCOVERY
Upon the foregoing documents, and after a conference on January 29, 2025, Third-Party
Defendant Ashlar Mechanical Corp.'s ("Ashlar") motion to compel Plaintiff to produce certain
160485/2021 CALDONE, JOHN vs. JRM CONSTRUCTION MANAGEMENT, LLC ET AL Page 1 of 4
Motion No. 001
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INDEX NO. 160485/2021
NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 01/30/2025
discovery is granted in part, denied in part, and otherwise resolved pursuant to the status
conference order entered by the parties on January 29, 2025.
All issues in this motion have been resolved by the parties except for three requested
categories of disclosure:
First, Ashlar seeks e-mails between Plaintiff and his attorneys who represented him in a
Workers' Compensation Board matter relating to his C-3 report on January 13, 2021. Ashlar argues
these e-mails are not privileged pursuant to the crime-fraud exception.
Second, Ashlar seeks authorizations to access Plaintiffs Instagram account to rebut
Plaintiffs claims ofloss of enjoyment of life.
Third, Ashlar seeks videos on Plaintiffs cell phone that either he made or received from
his children and other individuals of the MMA fights of his son, John Caldone, which purportedly
show Plaintiff shadowboxing and jumping, to also rebut claims of loss of enjoyment of life.
Ashlar's request for access to Plaintiffs Instagram account is granted, as this information
is discoverable "to the extent it '" contradicts or conflicts with [a] plaintiffs alleged restrictions,
disabilities, and losses, and other claims"' (Doyle v Temco Service Industries, Inc., 172 AD3d 554
[1st Dept 2019] quoting Patterson v Turner Constr. Co., 88 AD3d 617, 618 [1st Dept 2011]). For
the same reason, Ashlar is entitled to videos on Plaintiffs cell phone from his son's MMA
tournaments to the extent it shows him travelling to his son's interstate tournaments and engaging
in other physical activity in contravention to his alleged disabilities.
However, at this moment, Ashlar is not entitled to Plaintiffs communications with his
attorneys in a Workers' Compensation Board matter relating to his C-3 report. These
communications are privileged and although Ashlar alleges a fraudulent conspiracy, these are
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Motion No. 001
2 of 4
[* 2]
INDEX NO. 160485/2021
NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 01/30/2025
merely allegations. Absent an adjudication and finding of fraud by some authority, allegations
alone are insufficient to overcome the protections of the attorney-client privilege.
Accordingly, it is hereby,
ORDERED after a conference on January 29, 2025, Third-Party Defendant Ashlar
Mechanical Corp.'s ("Ashlar") motion to compel Plaintiff to produce certain discovery is granted
in part, denied in part, and otherwise resolved pursuant to the status conference order entered by
the parties on January 29, 2025; and it is further
ORDERED that Third-Party Defendant Ashlar Mechanical Corp.'s motion is granted to
the extent Plaintiff is directed to produce an authorization for Ashlar to access his Instagram
account, and to produce videos on his cell phone depicting Plaintiff at his son's MMA tournaments,
to the extent it shows him travelling to his son's interstate tournaments and engaging in other
physical activity in contravention to his alleged disabilities, within thirty-days of entry of this
Decision and Order; and it is further
ORDERED that Third-Party Defendant Ashlar Mechanical Corp.'s motion is denied,
without prejudice, to the extent he seeks e-mail correspondence between Plaintiff and his Workers'
Compensation Board attorneys relating to his C-3 report; and it is further
ORDERED that in all other respects, the motion is resolved in accordance with the status
conference order entered by the parties at the January 29, 2025 status conference; and it is further
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160485/2021 CALDONE, JOHN vs. JRM CONSTRUCTION MANAGEMENT, LLC ET AL Page 3 of 4
Motion No. 001
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INDEX NO. 160485/2021
NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 01/30/2025
ORDERED that within ten days of entry, counsel for Third-Party Defendant Ashlar
Mechanical Corp. shall serve a copy of this Decision and Order, with notice of entry, on all parties
via NYSCEF.
This constitutes the Decision and Order of the Court.
1/30/2025
DATE FoN. MARY v. ROSADO, J.s.c.
CHECK ONE: CASE DISPOSED x NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART Q OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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Motion No. 001
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