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Jeffrey L. Goldberg, Esq. | Timothy McEnaney, Esq.
3/4 Accidental Disability Pensions | 3/4 Heart, Lung and Stroke Bill
Disability Pensions | 3/4 WTC Disability Pension Reclassifications
Administrative Applications | Article 78 Special Proceedings | Appeals
FOIL Requests and Litigation
NYPensionLawyers.com “Protecting the disability pension rights of New York’s Civil Servants since 1978”
October 11, 2022
Via Efiling
State of New York Supreme Court Suffolk County
Hon. Jerry Garguilo
400 Carleton Avenue
Courtroom S-33
Central Islip, New York 11722
Re: Perez v. Tedesco, et al., Index No. 063193/2013
Dear Justice Garguilo:
During the last compliance conference before your Honor, on October 6, 2022, the parties
were instructed to await decision on Plaintiffs’ motion to compel the testimony of non-party,
Daniel Bernard, after which the parties were each directed to e-file a letter to the court explaining
why certification for trial should or should not be suspended in light of remaining discovery
matters and related motion practice.
That motion having now been decided in Plaintiff’s favor, Plaintiffs immediately filed the
order with notice of entry and, yesterday, placed a telephone call to Peter Mott, Mr. Bernard’s
attorney for new deposition dates. As of this writing that call has not been returned, however,
once we have heard back from Mr. Mott, we will notify Defendants of his newly proposed
deposition dates and follow up to expedite the scheduling of same.
As Mr. Bernard’s testimony is material to our forensic computer expert’s analysis and
conclusions regarding the spoliation of ESI and ESI metadata, our expert’s report, which is almost
complete in draft form (as to the Defendants’ most recent, 22-million-file, ESI backup
production), must await its completion until the signed transcript from Mr. Bernard’s deposition
has been received. Having spoken with our forensic expert this week, I am assured that the
remainder can be scheduled and completed within a few weeks of his receipt thereof but he could
not be more precise in ignorance of the extent and content of Mr. Bernard’s testimony or the
extent to which said testimony may affect his conclusions.
Following our receipt of our expert’s report, Plaintiff’s final sanctions motion, which is
nearly complete in draft form as well, will have to be re-worked to incorporate any new forensic
findings and Mr. Bernard’s testimony. Depending upon how extensive these revisions are, I do
not anticipate the motion will take more than two weeks to complete.
Office: (516) 775-9400 | Facsimile: (516) 775-4477
| 14 Vanderventer Avenue, Suite 129, Port Washington, New York 11050
Plaintiff’s motion to amend pleadings, discussed at the last conference, will be filed by the
end of next week and so should not occasion significant delay.
Plaintiff’s final D&I Request, served upon Plaintiff’s on September 30, 2022, which was
drafted before this Court’s decision on the above-referenced motion to compel, has not yet been
responded to by Defendants, but will likely have to be amended following Mr. Bernard’s
deposition. If history serves as any guide, said D&I request (and any amendments thereto) will be
followed by one or more motions to protect by Defendants.
Relatedly, Plaintiffs seek the Court’s guidance with respect to the certification order
forwarded to this office by Mr. Zerykier, requesting that Plaintiffs assert that this matter is ready
for trial and agreeing to file Plaintiffs’ note of issue by October 27, 2022, thereby waiving their
rights to complete discovery in this matter as outlined above. Given the above, discovery clearly
will not be completed by said date and any assertion by Plaintiffs to the contrary would be a false
statement. Please advise as to whether, in light of the granting of Plaintiffs motion to compel, the
Court endorses Defendants’ certification order request.
Given the discovery productions and material deposition testimony yet to be elicited,
Plaintiffs respectfully suggest a 90-day adjournment of the filing of the note of issue in this matter
to allow Plaintiffs to close out this discovery process and obtain the evidence needed to
adequately prepare for trial.
Best regards,
Timothy McEnaney, Esq.
Office: (516) 775-9400 | Facsimile: (516) 775-4477
| 14 Vanderventer Avenue, Suite 129, Port Washington, New York 11050
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Jeffrey L. Goldberg, Esq. | Timothy McEnaney, Esq. 3/4 Accidental Disability Pensions | 3/4 Heart, Lung and Stroke Bill Disability Pensions | 3/4 WTC Disability Pension Reclassifications Administrative Applications | Article 78 Special Proceedings | Appeals FOIL Requests and Litigation NYPensionLawyers.com “Protecting the disability pension rights of New York’s Civil Servants since 1978” October 11, 2022 Via Efiling State of New York Supreme Court Suffolk County Hon. Jerry Garguilo 400 Carleton Avenue Courtroom S-33 Central Islip, New York 11722 Re: Perez v. Tedesco, et al., Index No. 063193/2013 Dear Justice Garguilo: During the last compliance conference before your Honor, on October 6, 2022, the parties were instructed to await decision on Plaintiffs’ motion to compel the testimony of non-party, Daniel Bernard, after which the parties were each directed to e-file a letter to the court explaining why certification for trial should or should not be suspended in light of remaining discovery matters and related motion practice. That motion having now been decided in Plaintiff’s favor, Plaintiffs immediately filed the order with notice of entry and, yesterday, placed a telephone call to Peter Mott, Mr. Bernard’s attorney for new deposition dates. As of this writing that call has not been returned, however, once we have heard back from Mr. Mott, we will notify Defendants of his newly proposed deposition dates and follow up to expedite the scheduling of same. As Mr. Bernard’s testimony is material to our forensic computer expert’s analysis and conclusions regarding the spoliation of ESI and ESI metadata, our expert’s report, which is almost complete in draft form (as to the Defendants’ most recent, 22-million-file, ESI backup production), must await its completion until the signed transcript from Mr. Bernard’s deposition has been received. Having spoken with our forensic expert this week, I am assured that the remainder can be scheduled and completed within a few weeks of his receipt thereof but he could not be more precise in ignorance of the extent and content of Mr. Bernard’s testimony or the extent to which said testimony may affect his conclusions. Following our receipt of our expert’s report, Plaintiff’s final sanctions motion, which is nearly complete in draft form as well, will have to be re-worked to incorporate any new forensic findings and Mr. Bernard’s testimony. Depending upon how extensive these revisions are, I do not anticipate the motion will take more than two weeks to complete. Office: (516) 775-9400 | Facsimile: (516) 775-4477 | 14 Vanderventer Avenue, Suite 129, Port Washington, New York 11050 Plaintiff’s motion to amend pleadings, discussed at the last conference, will be filed by the end of next week and so should not occasion significant delay. Plaintiff’s final D&I Request, served upon Plaintiff’s on September 30, 2022, which was drafted before this Court’s decision on the above-referenced motion to compel, has not yet been responded to by Defendants, but will likely have to be amended following Mr. Bernard’s deposition. If history serves as any guide, said D&I request (and any amendments thereto) will be followed by one or more motions to protect by Defendants. Relatedly, Plaintiffs seek the Court’s guidance with respect to the certification order forwarded to this office by Mr. Zerykier, requesting that Plaintiffs assert that this matter is ready for trial and agreeing to file Plaintiffs’ note of issue by October 27, 2022, thereby waiving their rights to complete discovery in this matter as outlined above. Given the above, discovery clearly will not be completed by said date and any assertion by Plaintiffs to the contrary would be a false statement. Please advise as to whether, in light of the granting of Plaintiffs motion to compel, the Court endorses Defendants’ certification order request. Given the discovery productions and material deposition testimony yet to be elicited, Plaintiffs respectfully suggest a 90-day adjournment of the filing of the note of issue in this matter to allow Plaintiffs to close out this discovery process and obtain the evidence needed to adequately prepare for trial. Best regards, Timothy McEnaney, Esq. Office: (516) 775-9400 | Facsimile: (516) 775-4477 | 14 Vanderventer Avenue, Suite 129, Port Washington, New York 11050