Preview
FILED: MONROE COUNTY CLERK 11/22/2022 03:42 PM INDEX NO. E2021000033
NYSCEF DOC. NO. 484 RECEIVED NYSCEF: 11/22/2022
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3262585
Book Page CIVIL
Return To: No. Pages: 28
WARREN B. ROSENBAUM
1900 Bausch & Lomb Place Instrument: MEMO IN OPPOSITION
Rochester, NY 14604
Control #: 202211221549
Index #: E2021000033
Date: 11/22/2022
SAVE MONROE AVE., INC. Time: 4:08:52 PM
2900 MONROE AVE., LLC
CLIFFORDS OF PITTSFORD, L.P.
ELEXCO LAND SERVICES, INC.
Kopp, Julia D.
TOWN OF BRIGHTON, NEW YORK OFFICE OF THE
BUILDING INSPECTOR
Boehner in his capacity as Building Inspector, Ramsey
TOWN OF BRIGHTON, NEW YORK ZONING BOARD OF
APPEALS
TOWN OF BRIGHTON, NEW YORK
DANIELE MANAGEMENT, LLC
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
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STATE OF NEW YORK
SUPREME COURT COUNTY OF MONROE
SAVE MONROE AVE., INC.; 2900 MONROE AVE.,
LLC; CLIFFORDS OF PITTSFORD, L.P.; ELEXCO
LAND SERVICES, INC.; JULIA D. KOPP; MARK
BOYLAN; ANNE BOYLAN, and STEVEN M.
DEPERRIOR,
Petitioners-Plaintiffs,
vs. Index No. E2018002894
TOWN OF BRIGHTON, NEW YORK; TOWN BOARD
OF THE TOWN OF BRIGHTON, NEW YORK; TOWN
OF BRIGHTON PLANNING BOARD; DANIELE
MANAGEMENT, LLC; DANIELE SPC, LLC; MUCCA
MUCCA, LLC; MARDANTH ENTERPRISES, INC.;
M&F, LLC; THE DANIELE FAMILY COMPANIES;
FIRST BAPTIST CHURCH OF ROCHESTER;
ROCHESTER GAS AND ELECTRIC CORPORATION;
NEW YORK STATE DEPARTMENT OF
TRANSPORTATION; 2717 MONROE AVENUE LLC;
ATLANTIC HOTEL GROUP, INC.; MAMASAN'S
MONROE LLC; QING KAI SUN; PLUM GARDEN 66,
INC.; 2799 MONROE AVENUE LLC; HEMISPHERE
HOTELS, INC. f/k/a APEX HOSPITALITY, INC.;
2815 MONROE RETAIL OFFICE LLC; 2835 MONROE
HOLDINGS, LLC; MONROE OFFICE SUITES, LLC;
2875 MONROE CLOVER LLC; CLOVERPARK LTD.
PARTNERSHIP; and JOHN DOES 1-10,
Respondents-Defendants.
MEMORANDUM OF LAW IN OPPOSITION TO PETITIONERS' MOTION IN LIMINE
Dated: November 22, 2022 WOODS OVIATT GILMAN LLP
Warren B. Rosenbaum, Esq.
Jerry A. Goldman, Esq.
John C. Nutter, Esq.
Erin E. Elmouji, Esq.
Attorneys for Developer
1900 Bausch & Lomb Place
Rochester, New York 14604
585-987-2800
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STATE OF NEW YORK
SUPREME COURT COUNTY OF MONROE
CLOVER/ALLEN’S CREEK NEIGHBORHOOD
ASSOCIATION, LLC,
Petitioner-Plaintiff,
and
SAVE MONROE AVE., INC.; 2900 MONROE AVE.,
LLC; CLIFFORDS OF PITTSFORD, L.P.; ELEXCO
LAND SERVICES, INC.; JULIA D. KOPP; MARK
BOYLAN; ANNE BOYLAN, and STEVEN M.
DEPERRIOR,
Petitioners-Plaintiffs-Intervenors,
vs. Index No. E2018000937
M&F, LLC; DANIELE SPC, LLC; MUCCA MUCCA
LLC; MARDANTH ENTERPRISES, INC.; M&F, LLC;
DANIELE SPC, LLC, MUCCA MUCCA LLC;
MARDANTH ENTERPRISES, INC.; COLLECTIVELY
DOING BUSINESS AS DANIELE FAMILY
COMPANIES; TOWN OF BRIGHTON, NEW YORK;
TOWN BOARD OF THE TOWN OF BRIGHTON,
NEW YORK; NMS ALLENS CREEK INC.; and
ROCHESTER GAS AND ELECTRIC COMPANY,
and any persons or entities found to have an interest in the
Property subject to this action but not yet named.
For a Judgment Pursuant to New York CPLR Article 78,
for a Declaratory Judgment pursuant to New York CPLR
§ 3001, and for a judgment to quiet title pursuant to Real
Property Actions and Proceedings Law Article 15
Respondents-Defendants.
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STATE OF NEW YORK
SUPREME COURT COUNTY OF MONROE
BRIGHTON GRASSROOTS, LLC,
Petitioner-Plaintiff,
vs. Index No. E2018002961
TOWN OF BRIGHTON; TOWN OF BRIGHTON TOWN
BOARD; TOWN OF BRIGHTON PLANNING BOARD;
M&F, LLC; DANIELE SPC, LLC; MUCCA MUCCA LLC;
MARDANTH ENTERPRISES, INC.; DANIELE
MANAGEMENT, LLC, COLLECTIVELY DOING
BUSINESS AS DANIELE FAMILY COMPANIES;
ROCHESTER GAS AND ELECTRIC CORPORATION;
NMS ALLENS CREEK, INC.; THE FIRST BAPTIST
CHURCH OF ROCHESTER; ATLANTIC HOTEL
GROUP, INC.; 2717 MONROE AVENUE, LLC;
MAMASAN'S MONROE LLC; 2799 MONROE
AVENUE, LLC; QING KAI SUN; HEMISPHERE
HOTELS, INC.; 2815 MONROE RETAIL, LLC;
2835 MONROE HOLDINGS LLC; 2875 MONROE
CLOVER, LLC; MONROE OFFICE SUITES, LLC;
CLOVERPARK LIMITED PARTNERSHIP; NEW
YORK STATE DEPARTMENT OF
TRANSPORTATION; JOHN DOES 1-20; and
ABC CORPORATIONS 1-20,
Respondents-Defendants.
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STATE OF NEW YORK
SUPREME COURT COUNTY OF MONROE
BRIGHTON GRASSROOTS, LLC,
Petitioner-Plaintiff,
vs. Index No. E2018007330
TOWN OF BRIGHTON PLANNING BOARD; TOWN OF
BRIGHTON TOWN BOARD; TOWN OF BRIGHTON;
M&F, LLC; DANIELE SPC, LLC; MUCCA MUCCA LLC;
MARDANTH ENTERPRISES, INC.; DANIELE
MANAGEMENT, LLC; COLLECTIVELY DOING
BUSINESS AS DANIELE FAMILY COMPANIES;
ROCHESTER GAS AND ELECTRIC CORPORATION;
NMS ALLENS CREEK, INC.; THE FIRST BAPTIST
CHURCH OF ROCHESTER; ATLANTIC HOTEL
GROUP, INC.; 2717 MONROE AVENUE, LLC;
MAMASAN'S MONROE, LLC; PLUM GARDEN 66,
INC.; 2799 MONROE AVENUE, LLC; QING KAI SUN;
2815 MONROE RETAIL, LLC; 2835 MONROE
HOLDINGS, LLC; 2875 MONROE CLOVER, LLC;
MONROE OFFICE SUITES, LLC; CLOVERPARK
LIMITED PARTNERSHIP; NEW YORK STATE
DEPARTMENT OF TRANSPORTATION; JOHN DOES
1-20; and ABC CORPORATIONS 1-20,
Respondents-Defendants.
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STATE OF NEW YORK
SUPREME COURT COUNTY OF MONROE
SAVE MONROE AVE., INC.; 2900 MONROE AVE.,
LLC; CLIFFORDS OF PITTSFORD, L.P.; ELEXCO
LAND SERVICES, INC.; JULIA D. KOPP; MARK
BOYLAN; ANNE BOYLAN; and STEVEN M.
DEPERRIOR,
Petitioners-Plaintiffs,
vs. Index No. E2018007331
TOWN OF BRIGHTON PLANNING BOARD; DANIELE
MANAGEMENT, LLC; DANIELE SPC, LLC; MUCCA
MUCCA, LLC; MARDANTH ENTERPRISES, INC.;
M&F, LLC; THE DANIELE FAMILY COMPANIES;
FIRST BAPTIST CHURCH OF ROCHESTER;
ROCHESTER GAS AND ELECTRIC CORPORATION;
NEW YORK STATE DEPARTMENT OF
TRANSPORTATION; 2717 MONROE AVENUE LLC;
ATLANTIC HOTEL GROUP, INC.; MAMASAN'S
MONROE LLC; QING KAI SUN; PLUM GARDEN 66,
INC.; 2799 MONROE AVENUE, LLC; HEMISPHERE
HOTELS, INC. f/k/a APEX HOSPITALITY, INC.;
2815 MONROE RETAIL OFFICE, LLC; 2835 MONROE
HOLDINGS, LLC; MONROE OFFICE SUITES, LLC;
2875 MONROE CLOVER, LLC; CLOVERPARK LTD.
PARTNERSHIP; TOWN OF BRIGHTON, NEW YORK;
TOWN BOARD OF THE TOWN OF BRIGHTON,
NEW YORK; and JOHN DOES 1-10,
Respondents-Defendants.
and
CLOVER/ALLEN'S CREEK NEIGHBORHOOD
ASSOCIATION, LLC,
Intervenor-Respondent-Defendant.
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STATE OF NEW YORK
SUPREME COURT COUNTY OF MONROE
SAVE MONROE AVE., INC.; 2900 MONROE AVE.,
LLC; CLIFFORDS OF PITTSFORD, L.P.; ELEXCO
LAND SERVICES, INC.; JULIA D. KOPP; MARK
BOYLAN; ANNE BOYLAN; and STEVEN M.
DEPERRIOR,
Petitioners,
For Judgment Pursuant to Article 78 of the CPLR Index No.: E2021000033
-against-
TOWN OF BRIGHTON; NEW YORK OFFICE OF
THE BUILDING INSPECTOR; RAMSEY BOEHNER in
his capacity of Building Inspector; the TOWN OF
BRIGHTON; NEW YORK ZONING BOARD OF
APPEALS; the TOWN OF BRIGHTON, NEW YORK;
DANIELE MANAGEMENT, LLC; DANIELE SPC,
LLC; MUCCA MUCCA, LLC; MARDANTH
ENTERPRISES, INC.; and M&F LLC,
Respondents.
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STATE OF NEW YORK
SUPREME COURT COUNTY OF MONROE
BRIGHTON GRASSROOTS, LLC,
Petitioner,
vs. Index No.: E2021000039
TOWN OF BRIGHTON ZONING BOARD OF
APPEALS; TOWN OF BRIGHTON OFFICE OF THE
BUILDING INSPECTOR; TOWN OF BRIGHTON;
M&F, LLC; DANIELE SPC, LLC; MUCCA MUCCA
LLC; MARDANTH ENTERPRISES, INC.; DANIELE
MANAGEMENT, LLC; COLLECTIVELY DOING
BUSINESS AS DANIELE FAMILY COMPANIES;
JOHN DOES 1-20; and ABC CORPORATIONS 1-20,
Respondents.
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ........................................................................................... ii
ARGUMENT .................................................................................................................
2
I. PETITIONERS' MOTION IN LIMINE SEEKING TO PRECLUDE
EVIDENCE OF PETITIONERS' FINANCES, LITIGATION
FUNDING AND/OR FINANCIAL SUPPORTERS MUST BE
DENIED ..................................................................................................
2
II. RESPONDENTS ARE ENTITLED TO INTRODUCE EVIDENCE
IN SUPPORT OF THEIR AFFIRMATIVE DEFENSES
RELATING TO STANDING ................................................................... 4
III. THAT PORTION OF PETITIONERS' MOTION RELATING TO
RG&E'S PRIVILEGE IS NOT DIRECTED TO RESPONDENTS ............ 7
IV. PETITIONERS' REQUEST FOR PERMISSION TO TREAT
WITNESSES THEY CALL DURING THEIR CASE IN CHIEF AS
HOSTILE SHOULD BE DENIED ........................................................... 8
V. WITNESSES WHO ARE REPRESENTATIVES OF WHOLE FOODS
SHOULD BE ALLOWED TO TESTIFY AND ANY RELEVANT
EVIDENCE ADMITTED ......................................................................... 10
VI. EVIDENCE OF THE PRIOR USES AT THE PROJECT SITE ARE
PLAINLY RELEVANT AND ADMISSIBLE .......................................... 13
CONCLUSION...............................................................................................................
15
CERTIFICATE OF COMPLIANCE ............................................................................... 16
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TABLE OF AUTHORITIES
Cases: Page(s)
Angiolillo v. Town of Greenburgh,
290 AD2d 1 (2d Dep't 2001) ........................................................................................ 14
Cherokee Owners Corp. v. DNA Contracting, LLC,
74 AD3d 411 (1st Dep't 2010)...................................................................................... 13
Coleman v. New York City Transit Authority,
37 NY2d 137 (1975) ...................................................................................................... 4
Concepcion v. City of New York,
2006 U.S. Dist. LEXIS 54200 (S.D.N.Y. 2006) .............................................................. 3
Deutsche Bank Natl. Trust Co. v. Spanos,
102 AD3d 909 (2d Dep't 2013) ...................................................................................... 5
Eastern Profit Corp. v. Strategic Vision U.S., LLC,
2020 U.S. Dist. LEXIS 239663 (S.D.N.Y. 2020) ........................................................... 3
Friends of VanCortlandt Park v. City of New York,
95 NY2d 623 (2001) .................................................................................................... 14
Fox v. Tedesco,
15 AD3d 538 (2d Dep’t 2005) ........................................................................................ 9
Gibbs v. St. Barnabas Hosp.,
16 NY3d 74 (2010) ...................................................................................................... 12
Hill v. Arnold,
226 AD2d 232 (1st Dep’t 1996) ..................................................................................... 3
In re: Edward F.,
154 AD2d 464 (2d Dep’t 1989 ....................................................................................... 3
Jordan v. Parrinello,
144 AD2d 540 (2d Dep’t 1988) ...................................................................................... 8
Kaplan v. S.A. C. Capital Advisors, L.P.,
2015 U.S. Dist. LEXIS 135031 (S.D.N.Y. 2015) ............................................................ 3
Matter of Agila v. Edelman,
174 AD3d 521 (2d Dep’t 2019) ...................................................................................... 8
Matter of Giaquinto,
164 AD3d 1527 (3d Dep’t 2018) .................................................................................... 8
Mazella v. Beals,
27 NY3d 694 (2016) .................................................................................................... 15
Ostrander v. Ostrander,
280 AD2d 793 (3d Dep’t 2001) ...................................................................................... 8
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Siegman v. Rosen,
270 AD2d 14 (1st Dep't 2000)...................................................................................... 12
Other Authorities:
CPLR 2304 ............................................................................................................................. 11
CPLR 3103 ............................................................................................................................. 11
CPLR 3122 ............................................................................................................................. 11
CPLR 3124 ............................................................................................................................. 12
CPLR 3126 ............................................................................................................................. 12
Prince, Richardson on Evidence, Section 6-228 (2008) .............................................................. 8
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Respondents/Defendants Daniele Management, LLC, Daniele SPC, LLC, Mucca Mucca
LLC, Mardanth Enterprises, Inc., M&F LLC, and The Daniele Family Companies (hereinafter
collectively the “Developer”) and Respondents/Defendants Town of Brighton, Town of Brighton
Town Board, Town of Brighton Planning Board, Town of Brighton Zoning Board of Appeals and
related Town parties (collectively the “Town Respondents” and together with Developer,
“Respondents”) respectfully submit this Joint Memorandum of Law in opposition to the
Petitioners' joint motion in limine in each of these seven lawsuits (the “Proceedings”) proceeding
to trial to challenge the development of the Whole Foods Plaza project (the “Project”). 1
Petitioners' motion in limine represents a transparent attempt to keep any and all evidence
that is detrimental to their two remaining claims out of the trial record, no matter how relevant that
evidence is. Not only that, Petitioners seek to preclude information that the Court specifically
found in its summary judgment decision would be relevant at trial. Petitioners first seek to
preclude any evidence relating to their funding by a direct competitor of Whole Foods, despite
such evidence being plainly probative of credibility and bias. Next, despite never seeking an Order
dismissing affirmative defenses in their hundreds of pages of summary judgment motions,
Petitioners seek to preclude any evidence supporting Respondents' standing defenses based on a
very misleading theory that all standing defenses have been dismissed by the Court. In addition,
recognizing they lack witnesses with relevant personal knowledge within their control to offer
evidence in their case-in-chief, Petitioners seek a blanket ruling in advance that any Respondents'
representatives they call can be treated as hostile, despite having no evidentiary foundation or case
law to support this request. Further, notwithstanding the Court in its summary judgment decision
1 Developer notes that for purposes of administrative convenience, and due to significant substantive overlap, it is
submitting identical memoranda of law in the following proceedings,: E2018000937 (“CAC”); E2018002961 (BGR
I);E2018007330 (BGR II) (which was consolidated with E2018008343 (BGR III));E2018002894 (SMA I);and
E2018007331 (SMA II) (which was consolidated with E2018008349 (SMA III)); E2021000033, and E2021000039.
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directly mentioning that evidence concerning the operation of the Whole Foods store is relevant,
and having no evidence that either Respondents or Whole Foods violated any discovery Order,
Petitioners improperly request a blanket preclusion order with respect to Whole Foods' witnesses
or documents. Finally, in perhaps the most transparent attempt to keep relevant evidence from the
factfinder, Petitioners boldly seek to prohibit all evidence of prior uses at the Project site.
After many thousand pages of court filings, years of discovery, and more than four years
of litigation in which all but two of their claims have been dismissed, Petitioners now want to keep
highly relevant information identified by the Court in its summary judgment decision from coming
out at trial. According to Petitioners, their own witnesses' bias and credibility cannot be considered
while Respondents' witnesses can automatically be treated as hostile, and Respondents' evidence
and defenses recognized as directly relevant by the Court should be completely precluded.
For all the reasons set forth herein, and in all of the submissions of the Developer and the
Town Respondents in opposition to Petitioners' motion, which are fully incorporated herein,
Petitioners' motion in limine should be denied.
ARGUMENT
I. PETITIONERS’ MOTION IN LIMINE SEEKING TO PRECLUDE
EVIDENCE OF PETITIONERS’ FINANCES, LITIGATION FUNDING
AND/OR FINANCIAL SUPPORTERS MUST BE DENIED
By way of their motion in limine, Petitioners first seek to preclude Respondents from
introducing evidence and/or eliciting testimony regarding Petitioners’ finances, litigation
financing and/or financial supporters, inaccurately claiming that such evidence is irrelevant and,
therefore inadmissible. However, evidence of Petitioners’ finances, litigation financing and/or
financial supporters will demonstrate the bias, hostility and/or motive to lie of the witnesses called
by Petitioners and, thus, it is directly probative of those witnesses’ credibility. Accordingly, this
portion of Petitioners’ motion in limine must be denied.
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“Cross-examination of an adverse witness is a matter of right in every trial of a disputed
issue of fact.” Hill v. Arnold, 226 AD2d 232, 233 (1st Dep’t 1996). “Evidence tending to show a
witness’ bias, hostility or motive to lie is not collateral but directly probative of credibility. " Id.;
accord, In re: Edward F., 154 AD2d 464, 465 (2d Dep’t 1989). Furthermore, a party “is entitled
to explore the potential bias or prejudice of adverse parties.” Concepcion v. City of New York,
2006 U.S. Dist. LEXIS 54200, *12 (S.D.N.Y. 2006) (requiring production of indemnification
agreement between co-defendants).
The bias of a witness “may be shown by evidence of family, business or close social
relationships to affect” his or her credibility. Coleman v. New York City Transit Authority, 37
NY2d 137, 142-143 (1975). Thus, evidence regarding financial arrangements such as prior
settlement agreements, indemnification agreements and litigation funding agreements have all
been found to be relevant to the issues of witness credibility and bias. See Hill v Arnold, supra at
233 (“it has long been recognized that a prior settlement might well have an impact upon the
credibility of a witness called to testify on behalf of a former adverse party”); Kaplan v. S.A. C.
Capital Advisors, L.P., 2015 U.S. Dist. LEXIS 135031, *8-9 (S.D.N.Y. 2015) (granting motion
to compel production of indemnification agreement documents); Concepcion, 2006 U.S. Dist.
LEXIS 54200 at *12 (“an indemnification agreement between co-defendants may lead to evidence
of such bias”); Eastern Profit Corp. v. Strategic Vision U.S., LLC, 2020 U.S. Dist. LEXIS 239663,
*23-25 (S.D.N.Y. 2020) (denying motion in limine seeking to prevent evidence of litigation
funding).
In the decision of Eastern Profit Corp. v. Strategic Vision U.S. LLC, supra, the District
Court for the Southern District of New York denied a motion in limine seeking to exclude any
questions or testimony regarding the sources of the litigation funding for either side of the action.
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Id. at 21-25. In so holding, District Court noted that courts “have admitted funding documents,
such as indemnification agreements among co-defendants, when such documents are relevant to
credibility issues and to show the bias of one party for or against another.” Id. at 24. Therefore,
the District Court held that it would permit questioning regarding litigation funding and would
admit the testimony upon a demonstration, before the evidence was admitted, that the plaintiff had
a good faith belief that the defendant had been funded by the Chinese Communist Party. Id. at
*25.
Here, it is beyond dispute that Petitioners are receiving funding from a direct competitor
of Whole Foods and evidence of Petitioners' litigation funding could weigh on their credibility at
trial; otherwise, Petitioners would not have moved in limine. The extent to which Petitioners are
acting on behalf of and/or as agents of a Whole Foods competitor seeking to prevent Whole Foods
from entering into the Rochester market, is directly probative as to the credibility or bias of
Petitioners and their witnesses. Therefore, Respondents are clearly permitted under prevailing
New York law to explore those issues on cross-examination and introduce evidence of any such
financial arrangements Petitioners may have during the trial of this matter.
As evidence of Petitioners’ finances, litigation financing and/or financial supporters is
directly probative of Petitioners’ credibility, it is respectfully submitted that Petitioners’ motion in
limine seeking to preclude such evidence must be denied in all respects.
II. RESPONDENTS ARE ENTITLED TO INTRODUCE EVIDENCE IN
SUPPORT OF THEIR AFFIRMATIVE DEFENSES RELATING TO
STANDING
Petitioners' attempt to limit the introduction of evidence relating to Respondents'
affirmative defenses raising standing issues should be rejected. Standing is asserted as an
affirmative defense in each of the proceedings joined for trial. See E2018000937, Doc. Nos. 77 (¶
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132), 78 (¶ 132), 179 (¶¶ 63-65), 180 (¶¶ 63-64); E2018002894, Doc. Nos. 197 (¶ 280), 218 (¶
280); E2018002961, Doc. Nos. 269 (¶ 280), 290 (¶ 280), 353 (¶ 280), 354 (¶ 280); E2018007330
Doc. Nos. 98 (¶ 221), 119 (¶ 221), E2018007331 Doc. Nos. 124 (¶147), 146 (¶ 147); E2021000033
Doc. Nos. 33 (¶ 144), 39 (¶ 148); E2021000039 Doc. No. 43 (¶ 142).
A party seeking to dismiss an affirmative defense prior to trial must move for summary
judgment seeking dismissal of that affirmative defense. See Deutsche Bank Natl. Trust Co. v.
Spanos, 102 AD3d 909, 911-12 (2d Dep't 2013) (reversing grant of summary judgment dismissing
affirmative defense of lack of standing). Despite their voluminous motions for summary judgment,
Petitioners did not affirmatively move for summary judgment dismissing Respondents' affirmative
defenses raising standing in any proceeding. See, e.g., E2018007330 Doc. Nos. 1121, 1139;
E2018007331 Doc Nos. 359, 445.
Nor were all issues of standing resolved on the motions for summary judgment, as
Petitioners claim. Rather, the Town Respondents raised one discrete standing argument in their
opposition to Petitioners' motions for summary judgment, more specifically, in response to
Petitioners' new arguments that the Access Easement and other instruments allegedly granted the
Town express pedestrian easements, and that the Town acquired implied easements by prescription
and estoppel. E2018007331 Doc. No. 664, pg. 3-5. The Town Respondents asserted a standing
defense in response to these particular claims by the Petitioners, arguing that the Petitioners were
asserting derivative claims on the Town's behalf and, absent an alleged ownership interest in the
real property, Petitioners lacked standing to raise the claims. Id. In their Reply Memorandum of
Law, the SMA Petitioners expressly admitted that the Town's Answer included an affirmative
defense raising standing, but SMA argued that this affirmative defense as pled in the Town's
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INDEX NO. E2021000033
FILED: MONROE COUNTY CLERK 11/22/2022 03:42 PM
NYSCEF DOC. NO. 484 RECEIVED NYSCEF: 11/22/2022
Answer was not applicable to the express and implied easement claims now being raised.
E2018007331 Doc. No. 682, pg. 18-19.
Despite making such an argument on reply in connection with the motions for summary
judgment, Petitioners now mischaracterize the Court's ruling on the same motions in an attempt to
preclude any evidence with respect to all potential standing defenses. Petitioners cite a block quote
from this Court's Decision on the motions for summary judgment which includes the Court's
rejection, for purposes of the motions then before the Court, of the Town Respondent's standing
argument made specifically in response to the claims of express and implied easement asserted
Petitioners' motions for summary judgment. E2018002894 Doc. No. 710, p. 35. However,
Petitioners ignore the Court's concluding sentence in that section of the Decision, which states that
"[i]n conclusion of the Auburn Trail issues, too many fact debates exist to dispose of any part of
the same on a summary judgment posture." Id. (emphasis added). Petitioners cite to no Order of
this Court rejecting any and all standing defenses, and failed to move for such an Order dismissing
the standing affirmative defenses, or any affirmative defenses for that matter. Not surprisingly,
Petitioners fail to cite a single case in support of their argum ent seeking a broad exclusi
Preview
FILED: MONROE COUNTY CLERK 11/22/2022 03:42 PM INDEX NO. E2021000033 NYSCEF DOC. NO. 484 RECEIVED NYSCEF: 11/22/2022 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3262585 Book Page CIVIL Return To: No. Pages: 28 WARREN B. ROSENBAUM 1900 Bausch & Lomb Place Instrument: MEMO IN OPPOSITION Rochester, NY 14604 Control #: 202211221549 Index #: E2021000033 Date: 11/22/2022 SAVE MONROE AVE., INC. Time: 4:08:52 PM 2900 MONROE AVE., LLC CLIFFORDS OF PITTSFORD, L.P. ELEXCO LAND SERVICES, INC. Kopp, Julia D. TOWN OF BRIGHTON, NEW YORK OFFICE OF THE BUILDING INSPECTOR Boehner in his capacity as Building Inspector, Ramsey TOWN OF BRIGHTON, NEW YORK ZONING BOARD OF APPEALS TOWN OF BRIGHTON, NEW YORK DANIELE MANAGEMENT, LLC Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 1 of 28 202211221549 11/22/2022 04:08:52 PM CIVIL 202211221549 INDEX NO. E2021000033 FILED: MONROE COUNTY CLERK 11/22/2022 03:42 PM NYSCEF DOC. NO. 484 RECEIVED NYSCEF: 11/22/2022 STATE OF NEW YORK SUPREME COURT COUNTY OF MONROE SAVE MONROE AVE., INC.; 2900 MONROE AVE., LLC; CLIFFORDS OF PITTSFORD, L.P.; ELEXCO LAND SERVICES, INC.; JULIA D. KOPP; MARK BOYLAN; ANNE BOYLAN, and STEVEN M. DEPERRIOR, Petitioners-Plaintiffs, vs. Index No. E2018002894 TOWN OF BRIGHTON, NEW YORK; TOWN BOARD OF THE TOWN OF BRIGHTON, NEW YORK; TOWN OF BRIGHTON PLANNING BOARD; DANIELE MANAGEMENT, LLC; DANIELE SPC, LLC; MUCCA MUCCA, LLC; MARDANTH ENTERPRISES, INC.; M&F, LLC; THE DANIELE FAMILY COMPANIES; FIRST BAPTIST CHURCH OF ROCHESTER; ROCHESTER GAS AND ELECTRIC CORPORATION; NEW YORK STATE DEPARTMENT OF TRANSPORTATION; 2717 MONROE AVENUE LLC; ATLANTIC HOTEL GROUP, INC.; MAMASAN'S MONROE LLC; QING KAI SUN; PLUM GARDEN 66, INC.; 2799 MONROE AVENUE LLC; HEMISPHERE HOTELS, INC. f/k/a APEX HOSPITALITY, INC.; 2815 MONROE RETAIL OFFICE LLC; 2835 MONROE HOLDINGS, LLC; MONROE OFFICE SUITES, LLC; 2875 MONROE CLOVER LLC; CLOVERPARK LTD. PARTNERSHIP; and JOHN DOES 1-10, Respondents-Defendants. MEMORANDUM OF LAW IN OPPOSITION TO PETITIONERS' MOTION IN LIMINE Dated: November 22, 2022 WOODS OVIATT GILMAN LLP Warren B. Rosenbaum, Esq. Jerry A. Goldman, Esq. John C. Nutter, Esq. Erin E. Elmouji, Esq. Attorneys for Developer 1900 Bausch & Lomb Place Rochester, New York 14604 585-987-2800 {9040123:3 } 2 of 28 202211221549 11/22/2022 04:08:52 PM CIVIL 202211221549 INDEX NO. E2021000033 FILED: MONROE COUNTY CLERK 11/22/2022 03:42 PM NYSCEF DOC. NO. 484 RECEIVED NYSCEF: 11/22/2022 STATE OF NEW YORK SUPREME COURT COUNTY OF MONROE CLOVER/ALLEN’S CREEK NEIGHBORHOOD ASSOCIATION, LLC, Petitioner-Plaintiff, and SAVE MONROE AVE., INC.; 2900 MONROE AVE., LLC; CLIFFORDS OF PITTSFORD, L.P.; ELEXCO LAND SERVICES, INC.; JULIA D. KOPP; MARK BOYLAN; ANNE BOYLAN, and STEVEN M. DEPERRIOR, Petitioners-Plaintiffs-Intervenors, vs. Index No. E2018000937 M&F, LLC; DANIELE SPC, LLC; MUCCA MUCCA LLC; MARDANTH ENTERPRISES, INC.; M&F, LLC; DANIELE SPC, LLC, MUCCA MUCCA LLC; MARDANTH ENTERPRISES, INC.; COLLECTIVELY DOING BUSINESS AS DANIELE FAMILY COMPANIES; TOWN OF BRIGHTON, NEW YORK; TOWN BOARD OF THE TOWN OF BRIGHTON, NEW YORK; NMS ALLENS CREEK INC.; and ROCHESTER GAS AND ELECTRIC COMPANY, and any persons or entities found to have an interest in the Property subject to this action but not yet named. For a Judgment Pursuant to New York CPLR Article 78, for a Declaratory Judgment pursuant to New York CPLR § 3001, and for a judgment to quiet title pursuant to Real Property Actions and Proceedings Law Article 15 Respondents-Defendants. {9040123:3 } 3 of 28 202211221549 11/22/2022 04:08:52 PM CIVIL 202211221549 INDEX NO. E2021000033 FILED: MONROE COUNTY CLERK 11/22/2022 03:42 PM NYSCEF DOC. NO. 484 RECEIVED NYSCEF: 11/22/2022 STATE OF NEW YORK SUPREME COURT COUNTY OF MONROE BRIGHTON GRASSROOTS, LLC, Petitioner-Plaintiff, vs. Index No. E2018002961 TOWN OF BRIGHTON; TOWN OF BRIGHTON TOWN BOARD; TOWN OF BRIGHTON PLANNING BOARD; M&F, LLC; DANIELE SPC, LLC; MUCCA MUCCA LLC; MARDANTH ENTERPRISES, INC.; DANIELE MANAGEMENT, LLC, COLLECTIVELY DOING BUSINESS AS DANIELE FAMILY COMPANIES; ROCHESTER GAS AND ELECTRIC CORPORATION; NMS ALLENS CREEK, INC.; THE FIRST BAPTIST CHURCH OF ROCHESTER; ATLANTIC HOTEL GROUP, INC.; 2717 MONROE AVENUE, LLC; MAMASAN'S MONROE LLC; 2799 MONROE AVENUE, LLC; QING KAI SUN; HEMISPHERE HOTELS, INC.; 2815 MONROE RETAIL, LLC; 2835 MONROE HOLDINGS LLC; 2875 MONROE CLOVER, LLC; MONROE OFFICE SUITES, LLC; CLOVERPARK LIMITED PARTNERSHIP; NEW YORK STATE DEPARTMENT OF TRANSPORTATION; JOHN DOES 1-20; and ABC CORPORATIONS 1-20, Respondents-Defendants. {9040123:3 } 4 of 28 202211221549 11/22/2022 04:08:52 PM CIVIL 202211221549 INDEX NO. E2021000033 FILED: MONROE COUNTY CLERK 11/22/2022 03:42 PM NYSCEF DOC. NO. 484 RECEIVED NYSCEF: 11/22/2022 STATE OF NEW YORK SUPREME COURT COUNTY OF MONROE BRIGHTON GRASSROOTS, LLC, Petitioner-Plaintiff, vs. Index No. E2018007330 TOWN OF BRIGHTON PLANNING BOARD; TOWN OF BRIGHTON TOWN BOARD; TOWN OF BRIGHTON; M&F, LLC; DANIELE SPC, LLC; MUCCA MUCCA LLC; MARDANTH ENTERPRISES, INC.; DANIELE MANAGEMENT, LLC; COLLECTIVELY DOING BUSINESS AS DANIELE FAMILY COMPANIES; ROCHESTER GAS AND ELECTRIC CORPORATION; NMS ALLENS CREEK, INC.; THE FIRST BAPTIST CHURCH OF ROCHESTER; ATLANTIC HOTEL GROUP, INC.; 2717 MONROE AVENUE, LLC; MAMASAN'S MONROE, LLC; PLUM GARDEN 66, INC.; 2799 MONROE AVENUE, LLC; QING KAI SUN; 2815 MONROE RETAIL, LLC; 2835 MONROE HOLDINGS, LLC; 2875 MONROE CLOVER, LLC; MONROE OFFICE SUITES, LLC; CLOVERPARK LIMITED PARTNERSHIP; NEW YORK STATE DEPARTMENT OF TRANSPORTATION; JOHN DOES 1-20; and ABC CORPORATIONS 1-20, Respondents-Defendants. {9040123:3 } 5 of 28 202211221549 11/22/2022 04:08:52 PM CIVIL 202211221549 INDEX NO. E2021000033 FILED: MONROE COUNTY CLERK 11/22/2022 03:42 PM NYSCEF DOC. NO. 484 RECEIVED NYSCEF: 11/22/2022 STATE OF NEW YORK SUPREME COURT COUNTY OF MONROE SAVE MONROE AVE., INC.; 2900 MONROE AVE., LLC; CLIFFORDS OF PITTSFORD, L.P.; ELEXCO LAND SERVICES, INC.; JULIA D. KOPP; MARK BOYLAN; ANNE BOYLAN; and STEVEN M. DEPERRIOR, Petitioners-Plaintiffs, vs. Index No. E2018007331 TOWN OF BRIGHTON PLANNING BOARD; DANIELE MANAGEMENT, LLC; DANIELE SPC, LLC; MUCCA MUCCA, LLC; MARDANTH ENTERPRISES, INC.; M&F, LLC; THE DANIELE FAMILY COMPANIES; FIRST BAPTIST CHURCH OF ROCHESTER; ROCHESTER GAS AND ELECTRIC CORPORATION; NEW YORK STATE DEPARTMENT OF TRANSPORTATION; 2717 MONROE AVENUE LLC; ATLANTIC HOTEL GROUP, INC.; MAMASAN'S MONROE LLC; QING KAI SUN; PLUM GARDEN 66, INC.; 2799 MONROE AVENUE, LLC; HEMISPHERE HOTELS, INC. f/k/a APEX HOSPITALITY, INC.; 2815 MONROE RETAIL OFFICE, LLC; 2835 MONROE HOLDINGS, LLC; MONROE OFFICE SUITES, LLC; 2875 MONROE CLOVER, LLC; CLOVERPARK LTD. PARTNERSHIP; TOWN OF BRIGHTON, NEW YORK; TOWN BOARD OF THE TOWN OF BRIGHTON, NEW YORK; and JOHN DOES 1-10, Respondents-Defendants. and CLOVER/ALLEN'S CREEK NEIGHBORHOOD ASSOCIATION, LLC, Intervenor-Respondent-Defendant. {9040123:3 } 6 of 28 202211221549 11/22/2022 04:08:52 PM CIVIL 202211221549 INDEX NO. E2021000033 FILED: MONROE COUNTY CLERK 11/22/2022 03:42 PM NYSCEF DOC. NO. 484 RECEIVED NYSCEF: 11/22/2022 STATE OF NEW YORK SUPREME COURT COUNTY OF MONROE SAVE MONROE AVE., INC.; 2900 MONROE AVE., LLC; CLIFFORDS OF PITTSFORD, L.P.; ELEXCO LAND SERVICES, INC.; JULIA D. KOPP; MARK BOYLAN; ANNE BOYLAN; and STEVEN M. DEPERRIOR, Petitioners, For Judgment Pursuant to Article 78 of the CPLR Index No.: E2021000033 -against- TOWN OF BRIGHTON; NEW YORK OFFICE OF THE BUILDING INSPECTOR; RAMSEY BOEHNER in his capacity of Building Inspector; the TOWN OF BRIGHTON; NEW YORK ZONING BOARD OF APPEALS; the TOWN OF BRIGHTON, NEW YORK; DANIELE MANAGEMENT, LLC; DANIELE SPC, LLC; MUCCA MUCCA, LLC; MARDANTH ENTERPRISES, INC.; and M&F LLC, Respondents. {9040123:3 } 7 of 28 202211221549 11/22/2022 04:08:52 PM CIVIL 202211221549 INDEX NO. E2021000033 FILED: MONROE COUNTY CLERK 11/22/2022 03:42 PM NYSCEF DOC. NO. 484 RECEIVED NYSCEF: 11/22/2022 STATE OF NEW YORK SUPREME COURT COUNTY OF MONROE BRIGHTON GRASSROOTS, LLC, Petitioner, vs. Index No.: E2021000039 TOWN OF BRIGHTON ZONING BOARD OF APPEALS; TOWN OF BRIGHTON OFFICE OF THE BUILDING INSPECTOR; TOWN OF BRIGHTON; M&F, LLC; DANIELE SPC, LLC; MUCCA MUCCA LLC; MARDANTH ENTERPRISES, INC.; DANIELE MANAGEMENT, LLC; COLLECTIVELY DOING BUSINESS AS DANIELE FAMILY COMPANIES; JOHN DOES 1-20; and ABC CORPORATIONS 1-20, Respondents. {9040123:3 } 8 of 28 202211221549 11/22/2022 04:08:52 PM CIVIL 202211221549 INDEX NO. E2021000033 FILED: MONROE COUNTY CLERK 11/22/2022 03:42 PM NYSCEF DOC. NO. 484 RECEIVED NYSCEF: 11/22/2022 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ........................................................................................... ii ARGUMENT ................................................................................................................. 2 I. PETITIONERS' MOTION IN LIMINE SEEKING TO PRECLUDE EVIDENCE OF PETITIONERS' FINANCES, LITIGATION FUNDING AND/OR FINANCIAL SUPPORTERS MUST BE DENIED .................................................................................................. 2 II. RESPONDENTS ARE ENTITLED TO INTRODUCE EVIDENCE IN SUPPORT OF THEIR AFFIRMATIVE DEFENSES RELATING TO STANDING ................................................................... 4 III. THAT PORTION OF PETITIONERS' MOTION RELATING TO RG&E'S PRIVILEGE IS NOT DIRECTED TO RESPONDENTS ............ 7 IV. PETITIONERS' REQUEST FOR PERMISSION TO TREAT WITNESSES THEY CALL DURING THEIR CASE IN CHIEF AS HOSTILE SHOULD BE DENIED ........................................................... 8 V. WITNESSES WHO ARE REPRESENTATIVES OF WHOLE FOODS SHOULD BE ALLOWED TO TESTIFY AND ANY RELEVANT EVIDENCE ADMITTED ......................................................................... 10 VI. EVIDENCE OF THE PRIOR USES AT THE PROJECT SITE ARE PLAINLY RELEVANT AND ADMISSIBLE .......................................... 13 CONCLUSION............................................................................................................... 15 CERTIFICATE OF COMPLIANCE ............................................................................... 16 {9040123:3 } i 9 of 28 202211221549 11/22/2022 04:08:52 PM CIVIL 202211221549 INDEX NO. E2021000033 FILED: MONROE COUNTY CLERK 11/22/2022 03:42 PM NYSCEF DOC. NO. 484 RECEIVED NYSCEF: 11/22/2022 TABLE OF AUTHORITIES Cases: Page(s) Angiolillo v. Town of Greenburgh, 290 AD2d 1 (2d Dep't 2001) ........................................................................................ 14 Cherokee Owners Corp. v. DNA Contracting, LLC, 74 AD3d 411 (1st Dep't 2010)...................................................................................... 13 Coleman v. New York City Transit Authority, 37 NY2d 137 (1975) ...................................................................................................... 4 Concepcion v. City of New York, 2006 U.S. Dist. LEXIS 54200 (S.D.N.Y. 2006) .............................................................. 3 Deutsche Bank Natl. Trust Co. v. Spanos, 102 AD3d 909 (2d Dep't 2013) ...................................................................................... 5 Eastern Profit Corp. v. Strategic Vision U.S., LLC, 2020 U.S. Dist. LEXIS 239663 (S.D.N.Y. 2020) ........................................................... 3 Friends of VanCortlandt Park v. City of New York, 95 NY2d 623 (2001) .................................................................................................... 14 Fox v. Tedesco, 15 AD3d 538 (2d Dep’t 2005) ........................................................................................ 9 Gibbs v. St. Barnabas Hosp., 16 NY3d 74 (2010) ...................................................................................................... 12 Hill v. Arnold, 226 AD2d 232 (1st Dep’t 1996) ..................................................................................... 3 In re: Edward F., 154 AD2d 464 (2d Dep’t 1989 ....................................................................................... 3 Jordan v. Parrinello, 144 AD2d 540 (2d Dep’t 1988) ...................................................................................... 8 Kaplan v. S.A. C. Capital Advisors, L.P., 2015 U.S. Dist. LEXIS 135031 (S.D.N.Y. 2015) ............................................................ 3 Matter of Agila v. Edelman, 174 AD3d 521 (2d Dep’t 2019) ...................................................................................... 8 Matter of Giaquinto, 164 AD3d 1527 (3d Dep’t 2018) .................................................................................... 8 Mazella v. Beals, 27 NY3d 694 (2016) .................................................................................................... 15 Ostrander v. Ostrander, 280 AD2d 793 (3d Dep’t 2001) ...................................................................................... 8 {9040123:3 } ii 10 of 28 202211221549 11/22/2022 04:08:52 PM CIVIL 202211221549 INDEX NO. E2021000033 FILED: MONROE COUNTY CLERK 11/22/2022 03:42 PM NYSCEF DOC. NO. 484 RECEIVED NYSCEF: 11/22/2022 Siegman v. Rosen, 270 AD2d 14 (1st Dep't 2000)...................................................................................... 12 Other Authorities: CPLR 2304 ............................................................................................................................. 11 CPLR 3103 ............................................................................................................................. 11 CPLR 3122 ............................................................................................................................. 11 CPLR 3124 ............................................................................................................................. 12 CPLR 3126 ............................................................................................................................. 12 Prince, Richardson on Evidence, Section 6-228 (2008) .............................................................. 8 {9040123:3 } iii 11 of 28 202211221549 11/22/2022 04:08:52 PM CIVIL 202211221549 INDEX NO. E2021000033 FILED: MONROE COUNTY CLERK 11/22/2022 03:42 PM NYSCEF DOC. NO. 484 RECEIVED NYSCEF: 11/22/2022 Respondents/Defendants Daniele Management, LLC, Daniele SPC, LLC, Mucca Mucca LLC, Mardanth Enterprises, Inc., M&F LLC, and The Daniele Family Companies (hereinafter collectively the “Developer”) and Respondents/Defendants Town of Brighton, Town of Brighton Town Board, Town of Brighton Planning Board, Town of Brighton Zoning Board of Appeals and related Town parties (collectively the “Town Respondents” and together with Developer, “Respondents”) respectfully submit this Joint Memorandum of Law in opposition to the Petitioners' joint motion in limine in each of these seven lawsuits (the “Proceedings”) proceeding to trial to challenge the development of the Whole Foods Plaza project (the “Project”). 1 Petitioners' motion in limine represents a transparent attempt to keep any and all evidence that is detrimental to their two remaining claims out of the trial record, no matter how relevant that evidence is. Not only that, Petitioners seek to preclude information that the Court specifically found in its summary judgment decision would be relevant at trial. Petitioners first seek to preclude any evidence relating to their funding by a direct competitor of Whole Foods, despite such evidence being plainly probative of credibility and bias. Next, despite never seeking an Order dismissing affirmative defenses in their hundreds of pages of summary judgment motions, Petitioners seek to preclude any evidence supporting Respondents' standing defenses based on a very misleading theory that all standing defenses have been dismissed by the Court. In addition, recognizing they lack witnesses with relevant personal knowledge within their control to offer evidence in their case-in-chief, Petitioners seek a blanket ruling in advance that any Respondents' representatives they call can be treated as hostile, despite having no evidentiary foundation or case law to support this request. Further, notwithstanding the Court in its summary judgment decision 1 Developer notes that for purposes of administrative convenience, and due to significant substantive overlap, it is submitting identical memoranda of law in the following proceedings,: E2018000937 (“CAC”); E2018002961 (BGR I);E2018007330 (BGR II) (which was consolidated with E2018008343 (BGR III));E2018002894 (SMA I);and E2018007331 (SMA II) (which was consolidated with E2018008349 (SMA III)); E2021000033, and E2021000039. {9040123:3 } 1 12 of 28 202211221549 11/22/2022 04:08:52 PM CIVIL 202211221549 INDEX NO. E2021000033 FILED: MONROE COUNTY CLERK 11/22/2022 03:42 PM NYSCEF DOC. NO. 484 RECEIVED NYSCEF: 11/22/2022 directly mentioning that evidence concerning the operation of the Whole Foods store is relevant, and having no evidence that either Respondents or Whole Foods violated any discovery Order, Petitioners improperly request a blanket preclusion order with respect to Whole Foods' witnesses or documents. Finally, in perhaps the most transparent attempt to keep relevant evidence from the factfinder, Petitioners boldly seek to prohibit all evidence of prior uses at the Project site. After many thousand pages of court filings, years of discovery, and more than four years of litigation in which all but two of their claims have been dismissed, Petitioners now want to keep highly relevant information identified by the Court in its summary judgment decision from coming out at trial. According to Petitioners, their own witnesses' bias and credibility cannot be considered while Respondents' witnesses can automatically be treated as hostile, and Respondents' evidence and defenses recognized as directly relevant by the Court should be completely precluded. For all the reasons set forth herein, and in all of the submissions of the Developer and the Town Respondents in opposition to Petitioners' motion, which are fully incorporated herein, Petitioners' motion in limine should be denied. ARGUMENT I. PETITIONERS’ MOTION IN LIMINE SEEKING TO PRECLUDE EVIDENCE OF PETITIONERS’ FINANCES, LITIGATION FUNDING AND/OR FINANCIAL SUPPORTERS MUST BE DENIED By way of their motion in limine, Petitioners first seek to preclude Respondents from introducing evidence and/or eliciting testimony regarding Petitioners’ finances, litigation financing and/or financial supporters, inaccurately claiming that such evidence is irrelevant and, therefore inadmissible. However, evidence of Petitioners’ finances, litigation financing and/or financial supporters will demonstrate the bias, hostility and/or motive to lie of the witnesses called by Petitioners and, thus, it is directly probative of those witnesses’ credibility. Accordingly, this portion of Petitioners’ motion in limine must be denied. {9040123:3 } 2 13 of 28 202211221549 11/22/2022 04:08:52 PM CIVIL 202211221549 INDEX NO. E2021000033 FILED: MONROE COUNTY CLERK 11/22/2022 03:42 PM NYSCEF DOC. NO. 484 RECEIVED NYSCEF: 11/22/2022 “Cross-examination of an adverse witness is a matter of right in every trial of a disputed issue of fact.” Hill v. Arnold, 226 AD2d 232, 233 (1st Dep’t 1996). “Evidence tending to show a witness’ bias, hostility or motive to lie is not collateral but directly probative of credibility. " Id.; accord, In re: Edward F., 154 AD2d 464, 465 (2d Dep’t 1989). Furthermore, a party “is entitled to explore the potential bias or prejudice of adverse parties.” Concepcion v. City of New York, 2006 U.S. Dist. LEXIS 54200, *12 (S.D.N.Y. 2006) (requiring production of indemnification agreement between co-defendants). The bias of a witness “may be shown by evidence of family, business or close social relationships to affect” his or her credibility. Coleman v. New York City Transit Authority, 37 NY2d 137, 142-143 (1975). Thus, evidence regarding financial arrangements such as prior settlement agreements, indemnification agreements and litigation funding agreements have all been found to be relevant to the issues of witness credibility and bias. See Hill v Arnold, supra at 233 (“it has long been recognized that a prior settlement might well have an impact upon the credibility of a witness called to testify on behalf of a former adverse party”); Kaplan v. S.A. C. Capital Advisors, L.P., 2015 U.S. Dist. LEXIS 135031, *8-9 (S.D.N.Y. 2015) (granting motion to compel production of indemnification agreement documents); Concepcion, 2006 U.S. Dist. LEXIS 54200 at *12 (“an indemnification agreement between co-defendants may lead to evidence of such bias”); Eastern Profit Corp. v. Strategic Vision U.S., LLC, 2020 U.S. Dist. LEXIS 239663, *23-25 (S.D.N.Y. 2020) (denying motion in limine seeking to prevent evidence of litigation funding). In the decision of Eastern Profit Corp. v. Strategic Vision U.S. LLC, supra, the District Court for the Southern District of New York denied a motion in limine seeking to exclude any questions or testimony regarding the sources of the litigation funding for either side of the action. {9040123:3 } 3 14 of 28 202211221549 11/22/2022 04:08:52 PM CIVIL 202211221549 INDEX NO. E2021000033 FILED: MONROE COUNTY CLERK 11/22/2022 03:42 PM NYSCEF DOC. NO. 484 RECEIVED NYSCEF: 11/22/2022 Id. at 21-25. In so holding, District Court noted that courts “have admitted funding documents, such as indemnification agreements among co-defendants, when such documents are relevant to credibility issues and to show the bias of one party for or against another.” Id. at 24. Therefore, the District Court held that it would permit questioning regarding litigation funding and would admit the testimony upon a demonstration, before the evidence was admitted, that the plaintiff had a good faith belief that the defendant had been funded by the Chinese Communist Party. Id. at *25. Here, it is beyond dispute that Petitioners are receiving funding from a direct competitor of Whole Foods and evidence of Petitioners' litigation funding could weigh on their credibility at trial; otherwise, Petitioners would not have moved in limine. The extent to which Petitioners are acting on behalf of and/or as agents of a Whole Foods competitor seeking to prevent Whole Foods from entering into the Rochester market, is directly probative as to the credibility or bias of Petitioners and their witnesses. Therefore, Respondents are clearly permitted under prevailing New York law to explore those issues on cross-examination and introduce evidence of any such financial arrangements Petitioners may have during the trial of this matter. As evidence of Petitioners’ finances, litigation financing and/or financial supporters is directly probative of Petitioners’ credibility, it is respectfully submitted that Petitioners’ motion in limine seeking to preclude such evidence must be denied in all respects. II. RESPONDENTS ARE ENTITLED TO INTRODUCE EVIDENCE IN SUPPORT OF THEIR AFFIRMATIVE DEFENSES RELATING TO STANDING Petitioners' attempt to limit the introduction of evidence relating to Respondents' affirmative defenses raising standing issues should be rejected. Standing is asserted as an affirmative defense in each of the proceedings joined for trial. See E2018000937, Doc. Nos. 77 (¶ {9040123:3 } 4 15 of 28 202211221549 11/22/2022 04:08:52 PM CIVIL 202211221549 INDEX NO. E2021000033 FILED: MONROE COUNTY CLERK 11/22/2022 03:42 PM NYSCEF DOC. NO. 484 RECEIVED NYSCEF: 11/22/2022 132), 78 (¶ 132), 179 (¶¶ 63-65), 180 (¶¶ 63-64); E2018002894, Doc. Nos. 197 (¶ 280), 218 (¶ 280); E2018002961, Doc. Nos. 269 (¶ 280), 290 (¶ 280), 353 (¶ 280), 354 (¶ 280); E2018007330 Doc. Nos. 98 (¶ 221), 119 (¶ 221), E2018007331 Doc. Nos. 124 (¶147), 146 (¶ 147); E2021000033 Doc. Nos. 33 (¶ 144), 39 (¶ 148); E2021000039 Doc. No. 43 (¶ 142). A party seeking to dismiss an affirmative defense prior to trial must move for summary judgment seeking dismissal of that affirmative defense. See Deutsche Bank Natl. Trust Co. v. Spanos, 102 AD3d 909, 911-12 (2d Dep't 2013) (reversing grant of summary judgment dismissing affirmative defense of lack of standing). Despite their voluminous motions for summary judgment, Petitioners did not affirmatively move for summary judgment dismissing Respondents' affirmative defenses raising standing in any proceeding. See, e.g., E2018007330 Doc. Nos. 1121, 1139; E2018007331 Doc Nos. 359, 445. Nor were all issues of standing resolved on the motions for summary judgment, as Petitioners claim. Rather, the Town Respondents raised one discrete standing argument in their opposition to Petitioners' motions for summary judgment, more specifically, in response to Petitioners' new arguments that the Access Easement and other instruments allegedly granted the Town express pedestrian easements, and that the Town acquired implied easements by prescription and estoppel. E2018007331 Doc. No. 664, pg. 3-5. The Town Respondents asserted a standing defense in response to these particular claims by the Petitioners, arguing that the Petitioners were asserting derivative claims on the Town's behalf and, absent an alleged ownership interest in the real property, Petitioners lacked standing to raise the claims. Id. In their Reply Memorandum of Law, the SMA Petitioners expressly admitted that the Town's Answer included an affirmative defense raising standing, but SMA argued that this affirmative defense as pled in the Town's {9040123:3 } 5 16 of 28 202211221549 11/22/2022 04:08:52 PM CIVIL 202211221549 INDEX NO. E2021000033 FILED: MONROE COUNTY CLERK 11/22/2022 03:42 PM NYSCEF DOC. NO. 484 RECEIVED NYSCEF: 11/22/2022 Answer was not applicable to the express and implied easement claims now being raised. E2018007331 Doc. No. 682, pg. 18-19. Despite making such an argument on reply in connection with the motions for summary judgment, Petitioners now mischaracterize the Court's ruling on the same motions in an attempt to preclude any evidence with respect to all potential standing defenses. Petitioners cite a block quote from this Court's Decision on the motions for summary judgment which includes the Court's rejection, for purposes of the motions then before the Court, of the Town Respondent's standing argument made specifically in response to the claims of express and implied easement asserted Petitioners' motions for summary judgment. E2018002894 Doc. No. 710, p. 35. However, Petitioners ignore the Court's concluding sentence in that section of the Decision, which states that "[i]n conclusion of the Auburn Trail issues, too many fact debates exist to dispose of any part of the same on a summary judgment posture." Id. (emphasis added). Petitioners cite to no Order of this Court rejecting any and all standing defenses, and failed to move for such an Order dismissing the standing affirmative defenses, or any affirmative defenses for that matter. Not surprisingly, Petitioners fail to cite a single case in support of their argum ent seeking a broad exclusi