Preview
FILED: MONROE COUNTY CLERK 11/22/2022 04:54 PM INDEX NO. E2021000039
NYSCEF DOC. NO. 461 RECEIVED NYSCEF: 11/22/2022
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3262934
Book Page CIVIL
Return To: No. Pages: 33
MINDY LEE ZOGHLIN
300 State Street, Suite 502 Instrument: MEMO IN OPPOSITION
Rochester, NY 14614
Control #: 202211230139
Index #: E2021000039
Date: 11/23/2022
Brighton Grassroots, LLC. Time: 10:09:58 AM
Town of Brighton Zoning Board of Appeals
Town of Brighton Office of the Building Inspector
Town of Brighton
M&F LLC
Daniele SPC, 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, Index No. E2018007331
(consolidated with
Petitioners-Plaintiffs-Intervenors, E2018008349)
vs
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.
________________________________________________
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STATE OF NEW YORK
SUPREME COURT : COUNTY OF MONROE
___________________________________________________________
In the Matter of the Application of
CLOVER/ ALLEN’S CREEK NEIGHBORHOOD ASSOCIATION
LLC,
Petitioner-Plaintiff,
and
Index No.: E2018000937
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,
-against-
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
_______________________________________________
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, Index No. E2021000033
Petitioners-Plaintiffs-Intervenors,
vs
TOWN OF BRIGHTON, NEW YORK OFFICE OF THE
BUILDING INSPECTOR, RAMSEY BOEHNER, in his
capacity as Building Inspector, the , TOWN BOARD OF 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., M&F, LLC,
Respondents-Defendants.
____________________________________________________________
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STATE OF NEW YORK
SUPREME COURT COUNTY OF MONROE
_______________________________________________
BRIGHTON GRASSROOTS, LLC (INCLUDING
MEMBERS: HOWARD R. JACOBSON, MARGERY
HWANG, ROBERTA KERRY, DAVID G. GRANT, Index No. E2018002961
ANTHONY KINSLOW, PETER MULBERY, LISA
WHITTEMORE, NORMAN WHITTEMORE, ROBERTA
KERRY-SHARICK, LINDSAY DUELL),
Petitioners/Plaintiffs,
vs
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., A.S.M. HOSPITALITY LLC, 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 NOS. 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,
Petitioners/Plaintiffs, Index No. E2018007330
(consolidated with E2018008343)
vs
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., A.S.M. HOSPITALITY
LLC, 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
NOS. 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,
Petitioners/Plaintiffs, Index No. E2021000039
vs
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 NOS. 1-
20 and ABC CORPORATIONS 1-20,
Respondents/Defendants.
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COMBINED/JOINT MEMORANDUM OF LAW IN OPPOSITION TO
RESPONDENTS’/DEFENDANTS’ MOTION TO PRECLUDE
PETITIONERS’/PLAINTIFFS’ EXPERT WITNESSES FROM TESTIFYING AT TRIAL
HODGSON RUSS LLP
Attorneys for the Save Monroe Ave. Parties
Charles W. Malcomb
Aaron M. Saykin
Joel J. Terragnoli
The Guaranty Building
140 Pearl Street, Suite 100
Buffalo, NY 14202-4040
716.856.4000
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TABLE OF CONTENTS
PAGE
PRELIMINARY STATEMENT ..................................................................................................1
ARGUMENT ..................................................................................................................................4
POINT I. SMA/BGR/CAC’S EXPERT DISCLOSURES COMPLIED WITH CPLR
3101(D)(1)(I). ..........................................................................................................4
POINT II. PRECLUSION OF PETITIONERS’ EXPERTS WOULD BE AN
IMPROPER REMEDY. .........................................................................................18
CONCLUSION ............................................................................................................................21
i
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TABLE OF AUTHORITIES
PAGE
State Cases
Admiral Ins. Co. v. Joy Contractors, Inc.,
19 N.Y.3d 448 (2012) ..............................................................................................5, 10, 11, 17
Barrowman v. Niagara Mohawk Power Corp.,
252 A.D.2d 946 (4th Dep’t 1998) ..........................................................................................8, 9
Brighton Grassroots, LLC et al v. Town of Brighton et al,
Monroe Cnty. Sup. Ct. Index No. E2018002961.......................................................................1
Brighton Grassroots, LLC v. Town of Brighton Planning Board et al,
Monroe Cnty. Sup. Ct. Index No. E2018008343.......................................................................1
Brighton Grassroots, LLC v. Town of Brighton Zoning Board of Appeals,
Monroe Cnty. Sup. Ct. Index No. E2021000039.......................................................................1
Carter v. Isabella Geriatric Ctr., Inc.,
71 A.D.3d 443, 443-45 (1st Dep’t 2010) ...............................................................................8, 9
Clover/Allen’s Creek Neighborhood Ass’n, LLC v. M&F, LLC, et al,
Monroe Cnty. Sup. Ct. Index No. E2018000937.......................................................1, 7, 15, 20
Cullen v. Naples,
31 N.Y.2d 818 (1972) ................................................................................................................7
Douglas v. St. Joseph’s Hospital,
246 A.D.2d 695 (3d Dep’t 1998) ...........................................................................................197
Flowers v. Harborcenter Development, LLC,
169 A.D.3d 1387 (4th Dep’t 2019) ..........................................................................................19
Glick v. Harvey,
25 N.Y.3d 1175 (2015) ............................................................................................................16
Jiminez v. Gasque,
111 A.D.3d 675 (2d Dep’t 2013) ...............................................................................................6
People v. Miller,
91 N.Y.2d 372 (1998) ................................................................................................................5
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TABLE OF AUTHORITIES - cont’d
PAGE
Rivera v. Montefiore Medical Ctr.,
28 N.Y.3d 999 (2016) ................................................................................................................3
Save Monroe Ave., Inc. v. Town of Brighton,
Monroe Cnty. Sup. Ct. Index No. E2021000033.......................................................................1
Save Monroe Ave., Inc., v. Town of Brighton Planning Board,
Monroe Cnty. Sup. Ct. Index No. E2018007331............................................................. passim
Save Monroe Ave., Inc. v. Town of Brighton Planning Board,
Monroe Cnty. Sup. Ct. Index No. E2018008349.......................................................................1
Scibelli v. Planning Bd. of Town of Woodbury,
12 A.D.3d 450 (2d Dep’t 2004) ...............................................................................................12
Sean M. v. City of New York,
20 A.D.3d 146 (1st Dep’t 2005) ................................................................................................7
Serota Smithtown LLC v. Town of Smithtown Bd. of Zoning Appeals,
43 Misc. 3d 1206(A) (Sup. Ct. Suffolk Cnty. Mar. 25, 2014) .................................................13
Sisemore v. Leffler,
125 A.D.3d 1374 (4th Dep’t 2015) ..........................................................................................18
Syracuse v. Diao,
272 A.D.2d 881 (4th Dep’t 2000) ............................................................................................20
Waldo v. Minsoo Kangi,
139 A.D.3d 1365 (4th Dep’t 2016) ..........................................................................................18
Rules
CPLR 3101(d) ........................................................................................................................ passim
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PRELIMINARY STATEMENT
Petitioners-Plaintiffs in the joined actions (collectively, “SMA/BGR/CAC” or
“Petitioners”) 1 submit this combined/joint memorandum opposing Respondents’ motion in
limine/to preclude SMA/BGR/CAC from calling Clifford “Brett” Wing, Kristin Savard, and
Wendy Salvati as expert witnesses at trial. 2
Respondents come to Court backed by a small army of friendly and on-staff
engineers, planners, and Town officials who are prepared to testify as to their extensive personal
1
Petitioners/Plaintiffs 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 will be collectively referred to as “SMA”. The “Developer”
will refer to Respondents-Defendants Daniele Management, LLC, Daniele SPC, LLC,
Mucca Mucca, LLC, Mardanth Enterprises, Inc., and M&F, LLC, who collectively do
business as the Daniele Family Companies. The Developer, the Town of Brighton (the
“Town”), the Town Board, the Town Planning Board, and Rochester Gas & Electric
Corporation (RG&E) will be collectively referred to as “Respondents”.
2
This opposition concerns the motions to preclude SMA/BGR/CAC’s experts filed by
Respondents in several separate but related lawsuits that are scheduled for a joint trial,
including: Clover/Allen’s Creek Neighborhood Ass’n, LLC v. M&F, LLC, et al, Monroe
Cnty. Sup. Ct. Index No. E2018000937 (“CAC 1”), Dkt. 1254-1266, Save Monroe Ave.,
Inc., v. Town of Brighton Planning Board, Monroe Cnty. Sup. Ct. Index No.
E2018007331 (“SMA 2”), 806-818; Save Monroe Ave., Inc. v. Town of Brighton
Planning Board, Monroe Cnty. Sup. Ct. Index No. E2018008349 (“SMA 3”); and Save
Monroe Ave., Inc. v. Town of Brighton, Monroe Cnty. Sup. Ct. Index No. E2021000033,
Dkt. 453-465. The Court consolidated SMA 2 & SMA 3 into a single action, under the
Index Number for SMA 2 (E2018007331). See SMA 2, Dkt. 67. BGR’s public trust
and permissive referendum claims were raised in Brighton Grassroots, LLC et al v.
Town of Brighton et al, Monroe Cnty. Sup. Ct. Index No. E2018002961 (“BGR 1”);
Brighton Grassroots, LLC v. Town of Brighton Planning Board et al, E2018007330
(“BGR 2”), Brighton Grassroots, LLC v. Town of Brighton Planning Board et al,
Monroe Cnty. Sup. Ct. Index No. E2018008343 (“BGR 3”) and Brighton Grassroots,
LLC v. Town of Brighton Zoning Board of Appeals, Monroe Cnty. Sup. Ct. Index No.
E2021000039 ("BGR 8”). The Court consolidated BGR 2 and BGR 3 into a single
action under the Index Number for BGR 2 (E20218007330). See BGR 2, Dkt. 60.
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knowledge about the planning and development of the Whole Foods Plaza project (the
“Project”), and to comment on the design features thereof, collaboratively working to defend
against SMA/BGR/CAC’s public trust doctrine and permissive referendum claims. Not satisfied
with this numerical advantage, Respondents ask the Court to fully stack the deck in their favor
by precluding Petitioners from calling all three of their proposed expert witnesses in these areas
at trial, even though each has decades of relevant professional experience in grocery store
operations, site plan review, and/or community planning. Conveniently, Respondents’ witnesses
would then be free to testify unopposed about the Project’s design features and its site plans,
declare those features have no impacts on the Auburn Trail, and explain what the Town’s “true”
intentions were when it acquired the easements at the Project site.
The Court should decline that invitation and deny Respondents’ motion to
preclude. The expert disclosures filed by SMA/BGR/CAC complied with the requirements of
CPLR 3101(d)(1). Respondents’ cannot seriously feign confusion or surprise about the scope of
these disclosures when their own motion papers expressly identify and substantively attack the
exact issues on which Petitioners’ experts have proposed to testify.
Even if Petitioners’ expert disclosures had been deficient in some way (they are
not), preclusion would not be appropriate. Preclusion of expert testimony is a drastic remedy
that is reserved for willful instances of noncompliance with CPLR 3101(d)(1) that have resulted
in serious prejudice to the opposing party. Thus, even if Respondents were correct that
Petitioners’ expert disclosures are not sufficiently detailed, the proper remedy would be to direct
Petitioners to supplement them.
2
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Petitioners timely provided detailed expert disclosures pursuant to the parties’
mutually agreed on disclosure schedule that was so-ordered by the Court. Respondents could
have demanded that Petitioners provide expert disclosures at any point over the last several years
after issue was joined and these cases proceeded through discovery. If Respondents had truly
been concerned about mitigating any potential surprise from Petitioners’ experts, then they
would have, and should have, made that demand a long time ago. Any complaints of prejudice
by Petitioners’ allegedly insufficient disclosures at the “last minute” should ring hollow given
Respondents’ lack of diligence during discovery. Respondents have only themselves to blame if
they feel they lack sufficient time to prepare for cross-examining Petitioners’ experts at trial. As
further set forth below, Respondents’ motion to preclude should be denied in its entirety.
STANDARD OF REVIEW
CPLR 3101(d)(1) states that, “[u]pon request, each party shall identify each
person whom the party expects to call as an expert witness at trial and shall disclose in
reasonable detail the subject matter on which each expert is expected to testify, the substance of
the facts and opinions on which each expert is expected to testify, the qualifications of each
expert witness and a summary of the grounds for each expert's opinion.” “A determination
regarding whether to preclude a party from introducing the testimony of an expert witness at trial
based on the party’s failure to comply with CPLR 3101(d)(1)(i) is left to the sound discretion of
the court.” Rivera v. Montefiore Medical Ctr., 28 N.Y.3d 999, 1002 (2016).
3
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ARGUMENT
POINT I. SMA/BGR/CAC’s EXPERT DISCLOSURES COMPLIED
WITH CPLR 3101(d)(1)(i).
A. Mr. Wing’s Expert Disclosure Complied with CPLR 3101(d)(1)(i).
Petitioners intend to call Mr. Wing as an expert on grocery store operations to
explain how daily activities at the delivery and receiving area of the Whole Foods store at the
Project site are expected to impact the Town’s recreation easements. Mr. Wing is qualified to do
this given his decades of industry experience and his review of the Project’s final site plan, along
with other documents and materials in the record.
Respondents baselessly claim that SMA/BGR/CAC’s expert disclosure for Mr.
Wing is deficient. CPLR 3101(d)(1) only required SMA/BGR/CAC to disclose to Respondents
the qualifications, subject matter, the substance of the facts and opinions, and a summary of the
grounds for Mr. Wing’s opinion(s). SMA/BGR/CAC did so. Their expert disclosures for Mr.
Wing specified the subject matter of his testimony: grocery store operations. SMA 2, Dkt. 753
(¶ 2). The facts and documents he considered were listed as well. Id. (¶ 5). Mr. Wing’s
qualifications were also provided. His CV chronicles his work in the grocery store industry for
over 36 years. SMA 2, Dkt. 754. He has extensive experience in planning and managing
hundreds of grocery stores, including and overseeing advising on all aspects of the grocery store
business, including merchandising, operations, store layout, and logistics. See id.
Respondents’ argument that Mr. Wing is not qualified to testify about grocery
store operations and logistics because his decades of industry experience has been with grocery
4
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stores other than Whole Foods borders on the absurd. By that logic, no expert would ever be
permitted to testify about the operations of any business without working for that company first.
Industry practices, by definition, tend to be ubiquitous. There are only so many
ways that groceries can be physically delivered and received via truck. Mr. Wing, with his
decades of experience working at and overseeing hundreds of grocery stores, is knowledgeable
of grocery store delivery and receiving practices. He has the experience to look at the design of
the Whole Foods store delivery area at the Project site and thoughtfully opine on how it will be
used. As Respondents admit, the nature and extent of this use is a “key factor” in the Court’s
determination of whether the Project substantially intrudes upon the Town’s recreation
easements. SMA 2, Dkt. 815, ¶¶ 18-19. Mr. Wing’s expert testimony on that issue may assist
the Court, as the finder of fact, in making that decision. That is exactly what expert testimony is
supposed to do.
Respondents’ claim that Mr. Wing needs “personal knowledge” of this particular
Whole Foods store and/or the specific uses at the Project site before he can offer his expert
opinion is legally wrong. Compare SMA 2, Dkt. 915, ¶¶ 20-21 with Admiral Ins. Co. v. Joy
Contractors, Inc., 19 N.Y.3d 448, 457 (2012) (“an expert’s opinion need not be based upon
personal knowledge . . . An expert may instead ground his opinion on facts in evidence as was
the case here.”); People v. Miller, 91 N.Y.2d 372, 379 (1998) (holding same). Expert opinion
testimony is often based on things aside from personal knowledge, including “the facts and
material in evidence, real or testimony,” or, “material not in evidence provided that the out-of-
court material is derived from a witness subject to full cross-examination,” or other evidence
5
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commonly relied on in the expert’s professional area of expertise. See Jiminez v. Gasque, 111
A.D.3d 675, 676 (2d Dep’t 2013). Mr. Wing’s testimony will be based on his experience and his
review of the facts and materials in evidence, and he will be subject to full cross-examination.
Respondents’ belief that Mr. Wing’s testimony may stray beyond his areas of
expertise is not only speculative and premature, it is simply irrelevant for purpose of this motion
to preclude. Petitioners intend to qualify Mr. Wing as an expert in grocery store operations at
trial. If the Court considers Mr. Wing’s experience and finds he is not qualified to testify on
these issues then it can decline to qualify him as an expert. Or, if he is so qualified, to the extent
Respondents believe Petitioners are questioning Mr. Wing about areas outside of his expertise,
they can object to that line of testimony, and the Court can sustain or overrule that objection.
After fighting tooth and nail to prevent Petitioners from any getting witness
testimony from Whole Foods during discovery, Respondents now make the confounding claim
that it would be “unfair” for Mr. Wing to testify if they cannot call a witness from Whole Foods
in rebuttal. SMA 2, Dkt. 815, ¶ 23. Truly, if anyone is wanting to “have their cake and eat it
too” (id. ¶ 25), it is Respondents. By all appearances, Respondents knew that Mary Snow
Demos (a Whole Foods delivery and receiving specialist) 3 had information relevant to this case,
and that they intended to use her as a witness at trial. But they intentionally hid her identity from
3
Upon information and belief, “Mary Snow Demos” and “Mary Snow Thurber” are the
same person. See Zoominfo, “Mary Snow Demos”, https://www.zoominfo.com/p/Mary-
Demos/1361087328 (identifying Mary Demos as the “Operation Lead, Receiving,
Northeast Region Principal at Whole Foods Market); LinkedIn, “Mary Thurber”,
https://www.linkedin.com/in/mary-thurber-766a64102/ (identifying Mary Thurber as the
“Northeast Receiving Coordinator at Whole Foods Market”).
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202211230139 11/23/2022 10:09:58 AM CIVIL
202211230139
INDEX NO. E2021000039
FILED: MONROE COUNTY CLERK 11/22/2022 04:54 PM
NYSCEF DOC. NO. 461 RECEIVED NYSCEF: 11/22/2022
Petitioners for years, only recently revealing her identity on their jointly filed trial witness list. If
Respondents had not joined Whole Foods’ efforts to block SMA/BGR/CAC from obtaining
testimony from Ms. Demos (or some other similarly knowledgeable witness) then it would
arguably be unfair for Petitioners to move to preclude her testimony. But Respondents did join
in those efforts, so Petitioners’ motion is both reasonable and appropriate.
Respondents’ new claims concerning the importance of Ms. Demos’ testimony
are even more troubling given their prior unequivocal representations to this Court that
Petitioners’ efforts to subpoena documents and witness testimony from Whole Foods were, “on
[their] face” merely a “fishing expedition” that was intended “to obtain the operational details of
Whole Foods for reasons unrelated to the legal issues in these cases.” See CAC 1, Dkt. 314
(Rosenbaum Aff. ¶¶ 21-22). From the Developer’s lips to the Court’s ears.
Having chosen to shield Ms. Demos from Petitioners during discovery,
Respondents have made their own bed, and they should be forced to lie in it. It is not inequitable
for the Court to bind a party to the very course of conduct they charted during litigation. 4 Cullen
v. Naples, 31 N.Y.2d 818, 820 (1972) (“The parties to a lawsuit are free to chart their own course
at the trial [ ] and may fashion the basis upon which a particular controversy will be resolved.”);
Sean M. v. City of New York, 20 A.D.3d 146 (1st Dep’t 2005) (“While parties are accorded
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Respondents also fail to explain why any one of the Town or Developer’s many
eng