Practice point: Plaintiffs failed to make a prima facie showing of entitlement to partial
summary judgment as a matter of law. The non-prosecution agreement entered into
between the New York County District Attorney's Office (NYDA) and
defendants-Bovis, following NYDA's criminal investigation of the
2007 fire at the Deutsche Building in lower Manhattan, was correctly deemed
inadmissible as proof of liability. The agreement explicitly provided that
Bovis had not admitted liability; that the factual statements contained in the
agreement were relevant only for the purposes of the compromise between the
NYDA and Bovis; and that Bovis could contradict and/or contest any factual
statement in the agreement in a subsequent action or proceeding to which the
NYDA was not a party.
Student note:Judicial estoppel, and even informal judicial estoppel, cannot
be applied here. Bovis was not a party to any legal proceeding when it entered
into the non-prosecution agreement, and the agreement and related documents
amount to a pre-indictment settlement agreement that was neither judicially
endorsed nor approved.
Case: Borst v. Bovis Lend Lease LMB, Inc., NY Slip Op 00265 (1st Dept.
2013).
Here is the decision.
Tomorrow’s issue: Process servers’ affidavits.
