Motion-Secondary: Suzanne Schulman as Administratrix of the Estate of Brittney M. Schulman, Deceased, Alicia M Arundel, Olga Lipets, Mindy Grabina A/O/E AMY GRABINA, AND MINDY GRABINA, INDIVIDUALLY,, Steven Baruch A/O/E LAUREN BARUCH, deceased, AND STEVEN BARUCH, INDIVIDUALLY,, Joelle Dimonte, Melissa A Crai, Arthur A Belli Jr AS PARENT AND NATURAL GUARDIAN OF STEPHANIE BELLI, DECEASED, AND AS THE ADMINISTRATOR OF THE E/O STEPHANIE BELLI v. Ultimate Class Limousine, Inc., Carlos F Pino, Romeo Dimon Marine Service, Inc., Steven D Romeo, Town Of Southold, County Of Suffolk, Cabot Coach Builders, Inc D/B/A Royale Limousine, 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,

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                                FILED:         SUFFOLK          COUNTY        CLERK        12/01/2020             12:25       PM                    INDEX    NO.   611214/2015
   NYSCEF     DOC.   NO.   737                                                                                RECEIVED      NYSCEF:     12/01/2020




                  SUPREME        COURT      OF   THE   STATE     OF   NEW    YORK
                  COUNTY       OF   SUFFOLK
                  -----------------------------------------------------------------------X
                  ALICIA     M.  ARUNDEL;        SUZANNE        SCHULMAN,         AS               Index   No.:  611214/2015
                  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,                  REPLY      AFFIRMATION
                  AND    STEVEN       BARUCH,       INDIVIDUALLY;          JOELLE
                  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.


                           2. I submit   this  Affirmation    in  reply  to plaintiff  Belli's  affirmation   in  opposition   and   in


                  further  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




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   FILED:         SUFFOLK          COUNTY        CLERK        12/01/2020             12:25       PM                    INDEX    NO.   611214/2015
   NYSCEF     DOC.   NO.   737                                                                                RECEIVED      NYSCEF:     12/01/2020




                  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.  Contrary    to plaintiff’s  counsel’s    assertion,   this is  a different   motion    than  the  prior

                  motion    which   was   previously   decided    and  upon   which    an  appeal   was  filed.  In that  motion   we

                  sought to strike the Notice and preclude the appearance of the four witnesses. In this motion we

                  seek to restrict the testimony to areas which have not already been testified to twice already.

                           4. Plaintiff’s counsel attaches as an exhibit the prior decision of this Court pertaining to

                  the  Notice   served   by  plaintiff  which   noticed   4  depositions    on  the  same   date  and  time   in New

                  York. The Court did issue a protective order with respect to that Notice but allowed plaintiff to

                  serve separate    notices.  The   Court   also  recognized    that  not all areas   of inquiry   were   proper   and

                  allowed only those areas which were beyond the knowledge of Mr. Stock, and although it did not

                  specifically state it, also beyond the knowledge of Mr. Marchese the second witness produced by

                  CABOT.       The   Court   noted    that  the  conducting     of  successive    and   redundant     depositions    is

                  improper and the decision specifically permits additional motions by CABOT when needed.

                           5. The   current   Notice   attached   as Exhibit   H  to  the motion    simply   articulates  “all  of the

                  relevant    facts  and   circumstances      in   connection     with   this  litigation   including    negligence,

                  contributory negligence, liability or damages.” In other words, everything that Mr. Stock and Mr.

                  Marchese have already been deposed on as well as several things that were contained within the

                  prior notices but which neither witness was even asked a question about. Several of these things

                  were   already   addressed    in a  sworn   affidavit.  For  plaintiff  to  now   ask  questions   on  matters   for

                  which he already has a sworn statement is redundant and should not be permitted.

                           6. Plaintiff, for the first time in his opposition to this motion, addresses areas which Mr.

                  Smith   will  be  examined     on.  These   are  not  articulated   in the  Notice.   They   include    “the  QVM




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   FILED:         SUFFOLK          COUNTY        CLERK        12/01/2020             12:25       PM                    INDEX    NO.   611214/2015
   NYSCEF     DOC.   NO.   737                                                                                RECEIVED      NYSCEF:     12/01/2020




                  program,    along   with   CABOT’s      understanding,     implementation,      and  application    of  the criteria

                  therein.  How     those  policies   mirrored    CABOT’s      own    policies,  and   whether    or  not  they  were

                  followed with respect to the subject vehicle, all aspects of CABOT’s policies and procedures, the

                  work and/or inspections done (or not done) by CABOT with respect to this limousine, as well as

                  their  custom   and   practice  more    broadly.   Similarly,   any  experience    and/or   testing  CABOT       had

                  with  respect   to  side  impacts   on  limousines    must   be  examined.”     It goes   on  to state  that  if Mr.

                  Cabot has any knowledge regarding the subject accident or the subsequent investigation, that is

                  also relevant and must be explored.

                           7. The policies and procedures, the work done and the inspections done as well as custom

                  and   practice  was    testified  to in  detail  by  Mr.   Stock   and   Mr.   Marchese.    It  appears   from   the

                  affirmation in opposition      that plaintiff is,  for the   most part, simply seeking to go into the same

                  things   for  a  third  time.  This   redundancy      is something     that  this  Court   has   recognized     as  a

                  possibility and has counseled against in its prior decision.

                           8.  In support   of  his  opposition,    plaintiff  cites cases   that  state that  there  shall  be  “full

                  disclosure   of  all  matters   material   and   necessary    in the  prosecution     or  defense   of  an  action”

                  However, plaintiff fails to cite the limitation which is contained in a case which both parties cite,

                  Gilman    &   Ciocia   v.  Walsh,    45  AD3d     531   (2nd   Dept.,   2007),   i.e. the  limitation   is that  the

                  principle   of  “full disclosure”    does   not  give  the  party  the  right  to  unfettered   and   uncontrolled

                  disclosure.    Further,   the  cases   cited   by   plaintiff  deal   with   documents      and   do  not   address

                  depositions of a party. In comparison, two of the cases cited in the affirmation in support of the

                  motion do deal with depositions for which protective orders were issued. Plaintiff’s counsel also

                  cites a case which addresses plaintiff’s refusal to answer a question. That is not relevant in this

                  action or to this motion.




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                           9. 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 927 (2nd Dept., 2010); and Spohn-Konen v Town of Brookhaven,

                  74   AD3d     1049   (2nd    Dept.,   2010).   In  other   words,    seeking    redundant     information    is  not

                  countenanced     by   the Court.   Plaintiff should    be  limited  on  the  scope   of the  deposition   of  Cabot

                  Smith as a result of the obvious redundancy in the testimony he is seeking.

                           WHEREFORE,           it is respectfully    requested    that  the  instant  motion    be   granted   in  all

                  respects together with such other and further relief as the Court deems just and proper.

                  Dated: Melville, New York
                           December 1, 2020




                                                                                 ________________________________
                                                                                 STEVEN A. STEIGERWALD




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