On October 21, 2015 a
Motion-Secondary
was filed
involving a dispute between
Alicia M Arundel,
Arthur A Belli Jr
As Parent And Natural Guardian Of Stephanie Belli, Deceased, And As The Administrator Of The E O Stephanie Belli,
Joelle Dimonte,
Melissa A Crai,
Mindy Grabina
A O E Amy Grabina, And Mindy Grabina, Individually,,
Olga Lipets,
Steven Baruch
A O E Lauren Baruch, Deceased, And Steven Baruch, Individually,,
Suzanne Schulman
As Administratrix Of The Estate Of Brittney M. Schulman, Deceased,
and
Cabot Coach Builders, Inc D B A Royale Limousine,
Carlos F Pino,
County Of Suffolk,
Romeo Dimon Marine Service, Inc.,
Steven D Romeo,
Town Of Southold,
Ultimate Class Limousine, Inc.,
Xyz Companies 1-5
Name Being Fictitious But Intended To Be The Remanufacturers, Distributors, And Or Sellers Of The 2007 Lincoln Town Car Stretch Limousine Involved In The Collision,,
for Tort
in the District Court of Suffolk County.
Preview
FILED: SUFFOLK COUNTY CLERK 11/16/2020 01:08 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 711 RECEIVED NYSCEF: 11/16/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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ALICIA M. ARUNDEL; SUZANNE SCHULMAN, AS Index No.: 611214/15
ADMINISTRATRIX OF THE ESTATE OF BRITTNEY
M. SCHULMAN, DECEASED; OLGA LIPETS; MINDY
GRABINA, AS ADMINSTRATRIX OF THE ESTATE
OF AMY GRABINA, AND MINDY GRABINA,
INDIVIDUALLY; STEVEN BARUCH, AS ADMINISTRATOR
OF THE ESTATE OF LAUREN BARUCH, DECEASED, AFFIRMATION IN
AND STEVEN BARUCH, INDIVIDUALLY; JOELLE SUPPORT
DIMONTE; AND MELISSA A. CRAI,
Plaintiffs,
-against-
ULTIMATE CLASS LIMOUSINE, INC., CARLOS PINO,
ROMEO DIMON MARINE SERVICE, INC., STEVEN
ROMEO, TOWN OF SOUTHOLD and COUNTY OF
SUFFOLK, CABOT COACH BUILDERS, INC., d/b/a
1-5"
ROYALE LIMOUSINE and "XYZ COMPANIES
name being fictitious but intended to be the remanufacturers,
distributors and/or sellers of the 2007 Lincoln Town Car
stretch limousine involved in the collision,
Defendants.
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STEVEN A. STEIGERWALD, an attorney duly admitted in the State of New
York hereby sets forth the following upon information and belief:
1. I am associated with the Law Office of Andrea G. Sawyers, attorneys for
CABOT COACH BUILDERS, INC., d/b/a ROYALE LIMOUSINE ("CABOT"), in
this matter. I am fully familiar with the facts and circumstances set forth herein based
upon a review of the file maintained for the defense of the within matter.
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NYSCEF DOC. NO. 711 RECEIVED NYSCEF: 11/16/2020
2. I submit this Affirmation in support of the instant motion which seeks a
Protective Order, pursuant to CPLR 3103, limiting the extent of plaintiff’s Notice to
Take Deposition of Cabot Smith dated October 6, 2020 upon the ground that the
Notice is improper and that the deposition sought herein are duplicative, unduly
burdensome and are improper together with such further relief is just and proper.
3. The case arises out of a two-vehicle automobile accident that occurred on
July 18, 2015 at approximately 5:10 p.m. at the intersection of CR48 (a County road)
and Depot Lane (a Town of Southold road) in Southold, New York. Depot Lane is a
two lane road with one lane for northbound traffic and one lane for southbound traffic.
CR 48 is an east west road with 2 travel lanes in each direction and a grassy center
median with breaks for turns onto secondary roads and u-turns where permitted. At
this intersection, there was also a left turn lane in each direction. The intersection was
controlled by a blinking light at the time of the incident which was yellow on CR 48
and red on Depot Lane. There was no sign indicating No U-Turns in either direction
on the county road. One of the vehicles that was involved was a limousine which had
been extended by CABOT under a FORD program called QVM. CABOT is located
near the Massachusetts/New Hampshire border.
4. The eight cases were commenced individually. CABOT was not named as a
party in the initial pleadings. Subsequently, Supplemental Summonses and Amended
Complaints were served in each action naming CABOT as an additional party.
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CABOT served answers to each. Copies of the amended complaints are collectively
annexed as Exhibit A and copies of CABOT’s answers are collectively annexed
hereto as Exhibit B. Because it was a products liability action where the actions were
not strictly based on negligence, CABOT served interrogatories in each case and
answers were subsequently served. Each of the interrogatories are essentially the same
and each of the responses were essentially the same on liability issues for each of the
original eight cases. A copy of one of the sets of interrogatories and the corresponding
response is collectively annexed hereto as Exhibit C.
5. Discovery was commenced. During discovery, plaintiffs requested that
CABOT produce Philip Stock as its witness. Mr. Stock came from Massachusetts and
testified. A copy of his transcript is attached hereto as Exhibit D. Mr. Stock was
essentially in charge of running the shop at CABOT. Plaintiffs then noticed the
deposition of Patrick Marchese, the person that performed some of the welds on the
vehicle in question. A copy of the notice is annexed as Exhibit E. Mr. Marchese then
came from Massachusetts and was deposed. A copy of his transcript is annexed as
Exhibit F. No further notices for deposition were received until March 5, 2020 when a
Notice to Take Deposition was efiled by plaintiff. A copy of the Notice to Take
Deposition is annexed as Exhibit G. The Court found that the notice was improper but
permitted plaintiff to notice separate depositions while not ruling on the extent of the
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depositions. Plaintiff subsequently served a Notice for the deposition of Cabot Smith
on October 6, 2020. A copy is annexed hereto as Exhibit H.
6. The Notice annexed as Exhibit H is improper. It seeks to depose Mr. Smith on
all issues in this case as opposed to those which plaintiff claims the prior two
witnesses did not have sufficient knowledge. A protective Order should be issued
because the deposition sought herein is duplicative, unduly burdensome, and is
improper. As set forth in the affidavit of Cabot Smith, a copy of which is annexed
hereto as Exhibit I, at the time the Lincoln Town Car was being converted to a
limousine, he was the controller and sales manager for the company. He did not do
any inspections of the vehicles. The company employed Philip Stock to run the shop.
Mr. Stock has already appeared for deposition. The mechanic that performed the work
was also deposed. Clearly both had much more knowledge than Mr. Smith about the
work performed on the vehicle. There is no basis for requesting Mr. Smith’s
deposition about those issues.
7. The cases dealing with multiple depositions of the same party hold that
plaintiff must demonstrate that the prior proffered witnesses had insufficient
knowledge about a topic that is material and necessary for the prosecution of the case
or were inadequate and that the requested witness has information that is material and
necessary for the prosecution of the case. See Trueforge Global Machinery Corp. v.
Viraj Group, 84 AD3d 938 (2d Dept., 2011); Tristino v County of Suffolk, 78 AD3d
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927 (2nd Dept., 2010); and Spohn-Konen v Town of Brookhaven, 74 AD3d 1049
(2nd Dept., 2010). Plaintiff’s notice simply recites the same areas of questioning as set
forth in the prior three notices and does not point to anything that the two previously
produced witnesses from CABOT did not have knowledge about or did not have
adequate knowledge about. The absence of plaintiff identifying any area(s) where
there was missing or inadequate knowledge must be rectified prior to conducting his
deposition.
WHEREFORE, it is respectfully requested that the Court issue a Protective
Order, pursuant to CPLR 3103, limiting plaintiff’s Notice to Take Deposition upon
the ground that the Notice is improper and that the deposition sought herein is
duplicative, unduly burdensome, and is improper together with such further relief is
just and proper.
Dated: November 13, 2020
Melville, New York
_________________________
STEVEN A. STEIGERWALD
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Preview
FILED: SUFFOLK COUNTY CLERK 11/16/2020 01:08 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 711 RECEIVED NYSCEF: 11/16/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -----------------------------------------------------------------------X ALICIA M. ARUNDEL; SUZANNE SCHULMAN, AS Index No.: 611214/15 ADMINISTRATRIX OF THE ESTATE OF BRITTNEY M. SCHULMAN, DECEASED; OLGA LIPETS; MINDY GRABINA, AS ADMINSTRATRIX OF THE ESTATE OF AMY GRABINA, AND MINDY GRABINA, INDIVIDUALLY; STEVEN BARUCH, AS ADMINISTRATOR OF THE ESTATE OF LAUREN BARUCH, DECEASED, AFFIRMATION IN AND STEVEN BARUCH, INDIVIDUALLY; JOELLE SUPPORT DIMONTE; AND MELISSA A. CRAI, Plaintiffs, -against- ULTIMATE CLASS LIMOUSINE, INC., CARLOS PINO, ROMEO DIMON MARINE SERVICE, INC., STEVEN ROMEO, TOWN OF SOUTHOLD and COUNTY OF SUFFOLK, CABOT COACH BUILDERS, INC., d/b/a 1-5" ROYALE LIMOUSINE and "XYZ COMPANIES name being fictitious but intended to be the remanufacturers, distributors and/or sellers of the 2007 Lincoln Town Car stretch limousine involved in the collision, Defendants. -----------------------------------------------------------------------X STEVEN A. STEIGERWALD, an attorney duly admitted in the State of New York hereby sets forth the following upon information and belief: 1. I am associated with the Law Office of Andrea G. Sawyers, attorneys for CABOT COACH BUILDERS, INC., d/b/a ROYALE LIMOUSINE ("CABOT"), in this matter. I am fully familiar with the facts and circumstances set forth herein based upon a review of the file maintained for the defense of the within matter. 1 1 of 5 FILED: SUFFOLK COUNTY CLERK 11/16/2020 01:08 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 711 RECEIVED NYSCEF: 11/16/2020 2. I submit this Affirmation in support of the instant motion which seeks a Protective Order, pursuant to CPLR 3103, limiting the extent of plaintiff’s Notice to Take Deposition of Cabot Smith dated October 6, 2020 upon the ground that the Notice is improper and that the deposition sought herein are duplicative, unduly burdensome and are improper together with such further relief is just and proper. 3. The case arises out of a two-vehicle automobile accident that occurred on July 18, 2015 at approximately 5:10 p.m. at the intersection of CR48 (a County road) and Depot Lane (a Town of Southold road) in Southold, New York. Depot Lane is a two lane road with one lane for northbound traffic and one lane for southbound traffic. CR 48 is an east west road with 2 travel lanes in each direction and a grassy center median with breaks for turns onto secondary roads and u-turns where permitted. At this intersection, there was also a left turn lane in each direction. The intersection was controlled by a blinking light at the time of the incident which was yellow on CR 48 and red on Depot Lane. There was no sign indicating No U-Turns in either direction on the county road. One of the vehicles that was involved was a limousine which had been extended by CABOT under a FORD program called QVM. CABOT is located near the Massachusetts/New Hampshire border. 4. The eight cases were commenced individually. CABOT was not named as a party in the initial pleadings. Subsequently, Supplemental Summonses and Amended Complaints were served in each action naming CABOT as an additional party. 2 2 of 5 FILED: SUFFOLK COUNTY CLERK 11/16/2020 01:08 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 711 RECEIVED NYSCEF: 11/16/2020 CABOT served answers to each. Copies of the amended complaints are collectively annexed as Exhibit A and copies of CABOT’s answers are collectively annexed hereto as Exhibit B. Because it was a products liability action where the actions were not strictly based on negligence, CABOT served interrogatories in each case and answers were subsequently served. Each of the interrogatories are essentially the same and each of the responses were essentially the same on liability issues for each of the original eight cases. A copy of one of the sets of interrogatories and the corresponding response is collectively annexed hereto as Exhibit C. 5. Discovery was commenced. During discovery, plaintiffs requested that CABOT produce Philip Stock as its witness. Mr. Stock came from Massachusetts and testified. A copy of his transcript is attached hereto as Exhibit D. Mr. Stock was essentially in charge of running the shop at CABOT. Plaintiffs then noticed the deposition of Patrick Marchese, the person that performed some of the welds on the vehicle in question. A copy of the notice is annexed as Exhibit E. Mr. Marchese then came from Massachusetts and was deposed. A copy of his transcript is annexed as Exhibit F. No further notices for deposition were received until March 5, 2020 when a Notice to Take Deposition was efiled by plaintiff. A copy of the Notice to Take Deposition is annexed as Exhibit G. The Court found that the notice was improper but permitted plaintiff to notice separate depositions while not ruling on the extent of the 3 3 of 5 FILED: SUFFOLK COUNTY CLERK 11/16/2020 01:08 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 711 RECEIVED NYSCEF: 11/16/2020 depositions. Plaintiff subsequently served a Notice for the deposition of Cabot Smith on October 6, 2020. A copy is annexed hereto as Exhibit H. 6. The Notice annexed as Exhibit H is improper. It seeks to depose Mr. Smith on all issues in this case as opposed to those which plaintiff claims the prior two witnesses did not have sufficient knowledge. A protective Order should be issued because the deposition sought herein is duplicative, unduly burdensome, and is improper. As set forth in the affidavit of Cabot Smith, a copy of which is annexed hereto as Exhibit I, at the time the Lincoln Town Car was being converted to a limousine, he was the controller and sales manager for the company. He did not do any inspections of the vehicles. The company employed Philip Stock to run the shop. Mr. Stock has already appeared for deposition. The mechanic that performed the work was also deposed. Clearly both had much more knowledge than Mr. Smith about the work performed on the vehicle. There is no basis for requesting Mr. Smith’s deposition about those issues. 7. The cases dealing with multiple depositions of the same party hold that plaintiff must demonstrate that the prior proffered witnesses had insufficient knowledge about a topic that is material and necessary for the prosecution of the case or were inadequate and that the requested witness has information that is material and necessary for the prosecution of the case. See Trueforge Global Machinery Corp. v. Viraj Group, 84 AD3d 938 (2d Dept., 2011); Tristino v County of Suffolk, 78 AD3d 4 4 of 5 FILED: SUFFOLK COUNTY CLERK 11/16/2020 01:08 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 711 RECEIVED NYSCEF: 11/16/2020 927 (2nd Dept., 2010); and Spohn-Konen v Town of Brookhaven, 74 AD3d 1049 (2nd Dept., 2010). Plaintiff’s notice simply recites the same areas of questioning as set forth in the prior three notices and does not point to anything that the two previously produced witnesses from CABOT did not have knowledge about or did not have adequate knowledge about. The absence of plaintiff identifying any area(s) where there was missing or inadequate knowledge must be rectified prior to conducting his deposition. WHEREFORE, it is respectfully requested that the Court issue a Protective Order, pursuant to CPLR 3103, limiting plaintiff’s Notice to Take Deposition upon the ground that the Notice is improper and that the deposition sought herein is duplicative, unduly burdensome, and is improper together with such further relief is just and proper. Dated: November 13, 2020 Melville, New York _________________________ STEVEN A. STEIGERWALD 5 5 of 5