Preview
FILED: SUFFOLK COUNTY CLERK 12/08/2020 03:59 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 747 RECEIVED NYSCEF: 12/08/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
--------------------------------------------------------X
ALICIA M. ARUNDEL; SUZANNE SCHULMAN, AS
ADMINISTRATRIX OF THE ESTATE OF BRITTNEY M. Index No. 611214/15
SCHULMAN, DECEASED; OLGA LIPETS; MINDY
GRABINA, AS ADMINISTRATR1X OF THE ESTATE REPLY
OF AMY GRABINA, AND MINDY GRABINA, AFFIRMATION
INDIVIDUALLY; STEVEN BARUCH, AS IN SUPPORT
ADMINISTRATOR OF THE ESTATE OF 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
ESTATE OF STEPHANIE BELLI,
Plaintiffs,
- against - Hon John H. Rouse
ULTIMATE CLASS LIMOUSINE, INC., CARLOS PINO,
ROMEO DIMON MARINE SERVICE, INC., STEVEN D.
ROMEO, TOWN OF SOUTHOLD, 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
JOSHUA S. SHTEIERMAN, an attorney duly admitted in the State of New York hereby
sets forth the following upon information and belief.
l. I am with the LAW OFFICES OF THOMAS M. VOLZ, PLLC attorneys for the
TOWN OF SOUTHOLD (hereinafter "TOWN") in this matter.
2. I submit this reply affirmation in further support of the instant application for a
protective order, pursuant to CPLR 3103, vacating plaintiff CRAI's Notice to Take the Deposition
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of TOWN Supervisor Scott Russell ("RUSSELL) and TOWN Attorney William Duffy, Esq
("DUFFY") upon the ground that the depositions sought are duplicative, unduly burdensome, not
material or necessary to the issues in thislawsuit, not reasonably calculated to lead to the discovery
of admissible evidence and thus are improper, together with such further relief isjust and proper.
REPLY ARGUMENT
3. Plaintiff CRAI opposes the TOWN's motion for a protective order arguing that the
depositions of the Town Supervisor Russell ("RUSSELL") and Town Attorney Duffy ("DUFFY")
are necessary and essential. In so arguing, plaintiff CRAI alleges that any communication between
the County of Suffolk ("COUNTY") and the TOWN regarding U-turns made by limousines is
essential to the prosecution of this case. [See NYSECF No. 740, at p. 5]. Plaintiff DIMONTE
similarly argues that the Town did not "provide timely or appropriate information and did not take
appropriate steps to update the County on conditions at the intersection or ongoing complaints
18]."
[Nielsen Affirmation in Opposition, NYSCEF No. 746,
4. Not only is this proposition premised on a misapplication of the relevant law and
contrary to the testimony of COUNTY witnesses regarding the studies performed at the subject
intersection, plaintiff CRAI'S opposition ignores the fact that the information sought has already
been made available through other means of discovery. Moreover, the opposition does not refute
that the plaintiffs served discovery demands for the production of documents related to the two
quotes attributed to RUSSELL and DUFFY and that the TOWN responded to those demands in
turn. Thus, the depositions of RUSSELL and DUFFY are unnecessary, immaterial and the
information providing the alleged premise for those depositions has already been provided to the
plaintiffs through other forms of discovery.
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POINT I
DUFFY AND RUSSELL'S DEPOSITIONS WILL NOT PROVIDE ANY FURTHER
PROOF OF NOTICE THAN THE TESTIMONY OF THE COUNTY WITNESSES HAS
ALREADY PROVIDED.
5. Plaintiff CRAI perplexingly argues that the deposition of RUSSELL and DUFFY are
necessary to show that the TOWN had actual notice of the dangers of limousines making U-turns
on CR 48, a road acknowledged to be owned, maintained, controlled and operated by the
COUNTY. [NYCEF No. 740, at ¶l 8, ¶20]. Not only does whether the Town shared concerns it
received with the COUNTY regarding a County Road have no bearing whatsoever on the
liability/duty issues as alleged against the TOWN concerning the County Road, see e.g Town of
Huntington v. County of Suffolk, 79 A.D.3d 207, 224, 910 N.Y.S.2d 454, 467 (2d Dept. 2010),
the COUNTY has thus far, produced two (2) witnesses who have testified regarding the traffic
studies the COUNTY was performing on the subject roadway based on these concerns.
6. Specifically, the COUNTY's Assistant Chief Engineer, Daniel Dresch, Jr. has
Acting
testified in this action that the COUNTY was studying traffic issues associated with the subject
intersection since well before the subject accident. (See Exhibit "B", at pp. 240-243, annexed to
Shteierman Affirmation, dated November 25, 2020). Moreover, he testified that when conducting
a left-turn phase analysis of the subject intersection, left turns and U-turns were analyzed as being
functionally the same. (See Dresch EBT at I66:14-19 ). In fact, Mr. Dresch testified that the data
collected by the COUNTY as part of their left-turn phase analysis study included the number of
U-turns made at that intersection. (See Dresch EBT, at p. 168:23-25; 169: 2). Thus, there can be
no dispute that the COUNTY had studied the impact of U-turns/left turns at the subject intersection
when the subject accident occurred.
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7. More even if the TOWN did not forward complaints to the COUNTY U-
so, regarding
turns, the fact that the COUNTY was already studying those turns in their left-turn phase analysis
studies, renders the inquiry academic and moot. Therefore, the testimony of the COUNTY
witnesses refutes the plaintiff's claim that the deposition of RUSSELL and DUFFY are material
or necessary in the instant action.
POINT II
THE DOCUMENTS THE TOWN HAS PRODUCED RENDERS THE DEPOSITIONS OF
RUSSELL ANF DUFFY DUPLICATIVE, IMMATERIAL AND UNNECESARY
8. Plaintiff CRAI alleges that the depositions of RUSSELL and DUFFY are necessary to
the instant proceeding to explore further statements attributed to them in two news articles.
[NYCEF No. 740, ¶l3). Plaintiff CRAI fails to mention that following the publication of those
two news articles, the TOWN was served with a Notice for Discovery and Inspection which sought
the very information for which it isnow claimed that depositions of RUSSELL and DUFFY are
necessary. [NYCEF No. 701].
9. Specifically, production was sought for:
All communications, emails, text messages, memos, documents and
correspondence between the TOWN Supervisor Scott Russell and TOWN
Attorney William Duffy, and their respective representatives, and the
COUNTY OF SUFFOLK regarding complaints concerning traffic issues, speed
issues and U-turns at the intersection of County Road 48 and Depot Lane.
The Notice also demanded:
Any and all communications, emails, text messages, memos documents and
correspondence between the Town of Southold Supervisor Scott A. Russell
and any representative, employee, and/or agent of the County of Suffolk
any
statement"
regarding Mr. R.ussell's email "All reports of unsafe conditions or
complaints I receive regarding Route 48 are always referred to Suffolk County
which owns the road.
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10. The TOWN served responses to those demands which contained nearly seventy (70)
additional pages of documents. [See NYCEF No. 725]. The response also contained reference to
several previously provided documents which were also responsive to these new demands. Id.
11. Itis inaccurate for plaintiff CRAI to argue that the determination of the of the
necessity
deposition was based on the disclosures from the TOWN when the Notices for those deposition
were served prior to the receipt of the TOWN's responses. In fact, plaintiff CRAI makes no
mention of the TOWN's responses to those demands or the fact that they provide the very
information which plaintiff CRAI alleges is the basis for seeking the deposition of RUSSELL and
DUFFY. See e.g. Abreu ex rel.v. Deb-Bie Realty Associates, LLC, 44 A.D.3d 415, 843 N.Y.S.2d
(1St
257 Dept. 2007) protective order and notices of deposition for three
(granting vacating
additional municipal witnesses when such would be merely duplicative and not provide any new
information).
POINT III
PLAINTIFFS'
CRAI AND DIMONTE HAVE NOT MADE THE REQUlSITE SHOWING
TO JUSTIFY THE DEPOSITION OF THE TOWNS TWO HIGHEST RANKIN_G
GOVERNMENT OFFCIALS
12. To depose a high-ranking government official, a must demonstrate exceptional
party
circumstances justifying the deposition-for example, that the official has unique first-hand
knowledge related to the litigated claims or that the information cannot be obtained
necessary
through other, less burdensome or intrusive means. High-ranking government officials are
generally shielded from depositions because they have "greater duties and time constraints than
witnesses."
other Lederman v. New York City Dep't of Parks & Recreation, 731 F.3d 199, 203 (2d
Cir. 2013).
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13. Plaintiff CRAI makes no showing that the information sought in the depositions of
RUSSELL and DUFFY cannot be obtained through other less burdensome or intrusive means. As
stated, the information has already been produced by the TOWN. Nor does plaintiff distinguish
any of the cases cited by the TOWN which support itsentitlement to the protective order.
14. Plaintiff DIMONTE argues that DUFFY "is a witness who would certainly have to
review the agreement with the County to upgrade the traffic light at the intersection and will likely
upgrade."
have information about the timing of the (Nielsen Affirmation, NYSCEF 746 ¶l0). This
"agreement"
is a baseless claim that misstates the contents of the between the County and the
Town. That agreement, in fact, provides for the County's design and installation of the traffic light,
with the Town's obligation to maintain the light in good repair after the installation by the County
on the County Road. DIMONTE also asserts that the Town's decision to post signage on Love
Lane (Nielsen affirmation $10) somehow equates with a duty to post signage on a County road
that the Town does not own. This notion is incorrect and certainly does not create materiality where
none exists.
15. The case law is clear that Courts are called on to not limit the depositions of high-
ranking government officials as otherwise such officials would spend "an inordinate amount of
litigation."
time tending to pending Id. The prejudice and expense to the TOWN to permit its two
highest ranking government officials to be removed from their official duties to provide
information which has already been produced is significant and justifies the issuance of a
protective order. Plaintiff's silence on this argument is telling.
WHEREFORE, it is respectfully requested that the Court issue a Protective Order,
pursuant to CPLR 3103, vacating plaintiff's Notices of Deposition of Scott Russell and William
Duffy upon the ground that the depositions sought herein are duplicative, unduly burdensome, do
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plaintiffs'
not bear on the issues in the lawsuit, and are not material and necessary to the claims
and are thus improper, together with such other and further relief isjust and proper.
Dated: December 8, 2020
Nesconset, New York
J IUA S. SHTEIERMAÑ
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Preview
FILED: SUFFOLK COUNTY CLERK 12/08/2020 03:59 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 747 RECEIVED NYSCEF: 12/08/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK --------------------------------------------------------X ALICIA M. ARUNDEL; SUZANNE SCHULMAN, AS ADMINISTRATRIX OF THE ESTATE OF BRITTNEY M. Index No. 611214/15 SCHULMAN, DECEASED; OLGA LIPETS; MINDY GRABINA, AS ADMINISTRATR1X OF THE ESTATE REPLY OF AMY GRABINA, AND MINDY GRABINA, AFFIRMATION INDIVIDUALLY; STEVEN BARUCH, AS IN SUPPORT ADMINISTRATOR OF THE ESTATE OF 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 ESTATE OF STEPHANIE BELLI, Plaintiffs, - against - Hon John H. Rouse ULTIMATE CLASS LIMOUSINE, INC., CARLOS PINO, ROMEO DIMON MARINE SERVICE, INC., STEVEN D. ROMEO, TOWN OF SOUTHOLD, 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 JOSHUA S. SHTEIERMAN, an attorney duly admitted in the State of New York hereby sets forth the following upon information and belief. l. I am with the LAW OFFICES OF THOMAS M. VOLZ, PLLC attorneys for the TOWN OF SOUTHOLD (hereinafter "TOWN") in this matter. 2. I submit this reply affirmation in further support of the instant application for a protective order, pursuant to CPLR 3103, vacating plaintiff CRAI's Notice to Take the Deposition 1 of 7 FILED: SUFFOLK COUNTY CLERK 12/08/2020 03:59 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 747 RECEIVED NYSCEF: 12/08/2020 of TOWN Supervisor Scott Russell ("RUSSELL) and TOWN Attorney William Duffy, Esq ("DUFFY") upon the ground that the depositions sought are duplicative, unduly burdensome, not material or necessary to the issues in thislawsuit, not reasonably calculated to lead to the discovery of admissible evidence and thus are improper, together with such further relief isjust and proper. REPLY ARGUMENT 3. Plaintiff CRAI opposes the TOWN's motion for a protective order arguing that the depositions of the Town Supervisor Russell ("RUSSELL") and Town Attorney Duffy ("DUFFY") are necessary and essential. In so arguing, plaintiff CRAI alleges that any communication between the County of Suffolk ("COUNTY") and the TOWN regarding U-turns made by limousines is essential to the prosecution of this case. [See NYSECF No. 740, at p. 5]. Plaintiff DIMONTE similarly argues that the Town did not "provide timely or appropriate information and did not take appropriate steps to update the County on conditions at the intersection or ongoing complaints 18]." [Nielsen Affirmation in Opposition, NYSCEF No. 746, 4. Not only is this proposition premised on a misapplication of the relevant law and contrary to the testimony of COUNTY witnesses regarding the studies performed at the subject intersection, plaintiff CRAI'S opposition ignores the fact that the information sought has already been made available through other means of discovery. Moreover, the opposition does not refute that the plaintiffs served discovery demands for the production of documents related to the two quotes attributed to RUSSELL and DUFFY and that the TOWN responded to those demands in turn. Thus, the depositions of RUSSELL and DUFFY are unnecessary, immaterial and the information providing the alleged premise for those depositions has already been provided to the plaintiffs through other forms of discovery. 2 2 of 7 FILED: SUFFOLK COUNTY CLERK 12/08/2020 03:59 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 747 RECEIVED NYSCEF: 12/08/2020 POINT I DUFFY AND RUSSELL'S DEPOSITIONS WILL NOT PROVIDE ANY FURTHER PROOF OF NOTICE THAN THE TESTIMONY OF THE COUNTY WITNESSES HAS ALREADY PROVIDED. 5. Plaintiff CRAI perplexingly argues that the deposition of RUSSELL and DUFFY are necessary to show that the TOWN had actual notice of the dangers of limousines making U-turns on CR 48, a road acknowledged to be owned, maintained, controlled and operated by the COUNTY. [NYCEF No. 740, at ¶l 8, ¶20]. Not only does whether the Town shared concerns it received with the COUNTY regarding a County Road have no bearing whatsoever on the liability/duty issues as alleged against the TOWN concerning the County Road, see e.g Town of Huntington v. County of Suffolk, 79 A.D.3d 207, 224, 910 N.Y.S.2d 454, 467 (2d Dept. 2010), the COUNTY has thus far, produced two (2) witnesses who have testified regarding the traffic studies the COUNTY was performing on the subject roadway based on these concerns. 6. Specifically, the COUNTY's Assistant Chief Engineer, Daniel Dresch, Jr. has Acting testified in this action that the COUNTY was studying traffic issues associated with the subject intersection since well before the subject accident. (See Exhibit "B", at pp. 240-243, annexed to Shteierman Affirmation, dated November 25, 2020). Moreover, he testified that when conducting a left-turn phase analysis of the subject intersection, left turns and U-turns were analyzed as being functionally the same. (See Dresch EBT at I66:14-19 ). In fact, Mr. Dresch testified that the data collected by the COUNTY as part of their left-turn phase analysis study included the number of U-turns made at that intersection. (See Dresch EBT, at p. 168:23-25; 169: 2). Thus, there can be no dispute that the COUNTY had studied the impact of U-turns/left turns at the subject intersection when the subject accident occurred. 3 3 of 7 FILED: SUFFOLK COUNTY CLERK 12/08/2020 03:59 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 747 RECEIVED NYSCEF: 12/08/2020 7. More even if the TOWN did not forward complaints to the COUNTY U- so, regarding turns, the fact that the COUNTY was already studying those turns in their left-turn phase analysis studies, renders the inquiry academic and moot. Therefore, the testimony of the COUNTY witnesses refutes the plaintiff's claim that the deposition of RUSSELL and DUFFY are material or necessary in the instant action. POINT II THE DOCUMENTS THE TOWN HAS PRODUCED RENDERS THE DEPOSITIONS OF RUSSELL ANF DUFFY DUPLICATIVE, IMMATERIAL AND UNNECESARY 8. Plaintiff CRAI alleges that the depositions of RUSSELL and DUFFY are necessary to the instant proceeding to explore further statements attributed to them in two news articles. [NYCEF No. 740, ¶l3). Plaintiff CRAI fails to mention that following the publication of those two news articles, the TOWN was served with a Notice for Discovery and Inspection which sought the very information for which it isnow claimed that depositions of RUSSELL and DUFFY are necessary. [NYCEF No. 701]. 9. Specifically, production was sought for: All communications, emails, text messages, memos, documents and correspondence between the TOWN Supervisor Scott Russell and TOWN Attorney William Duffy, and their respective representatives, and the COUNTY OF SUFFOLK regarding complaints concerning traffic issues, speed issues and U-turns at the intersection of County Road 48 and Depot Lane. The Notice also demanded: Any and all communications, emails, text messages, memos documents and correspondence between the Town of Southold Supervisor Scott A. Russell and any representative, employee, and/or agent of the County of Suffolk any statement" regarding Mr. R.ussell's email "All reports of unsafe conditions or complaints I receive regarding Route 48 are always referred to Suffolk County which owns the road. 4 4 of 7 FILED: SUFFOLK COUNTY CLERK 12/08/2020 03:59 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 747 RECEIVED NYSCEF: 12/08/2020 10. The TOWN served responses to those demands which contained nearly seventy (70) additional pages of documents. [See NYCEF No. 725]. The response also contained reference to several previously provided documents which were also responsive to these new demands. Id. 11. Itis inaccurate for plaintiff CRAI to argue that the determination of the of the necessity deposition was based on the disclosures from the TOWN when the Notices for those deposition were served prior to the receipt of the TOWN's responses. In fact, plaintiff CRAI makes no mention of the TOWN's responses to those demands or the fact that they provide the very information which plaintiff CRAI alleges is the basis for seeking the deposition of RUSSELL and DUFFY. See e.g. Abreu ex rel.v. Deb-Bie Realty Associates, LLC, 44 A.D.3d 415, 843 N.Y.S.2d (1St 257 Dept. 2007) protective order and notices of deposition for three (granting vacating additional municipal witnesses when such would be merely duplicative and not provide any new information). POINT III PLAINTIFFS' CRAI AND DIMONTE HAVE NOT MADE THE REQUlSITE SHOWING TO JUSTIFY THE DEPOSITION OF THE TOWNS TWO HIGHEST RANKIN_G GOVERNMENT OFFCIALS 12. To depose a high-ranking government official, a must demonstrate exceptional party circumstances justifying the deposition-for example, that the official has unique first-hand knowledge related to the litigated claims or that the information cannot be obtained necessary through other, less burdensome or intrusive means. High-ranking government officials are generally shielded from depositions because they have "greater duties and time constraints than witnesses." other Lederman v. New York City Dep't of Parks & Recreation, 731 F.3d 199, 203 (2d Cir. 2013). 5 5 of 7 FILED: SUFFOLK COUNTY CLERK 12/08/2020 03:59 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 747 RECEIVED NYSCEF: 12/08/2020 13. Plaintiff CRAI makes no showing that the information sought in the depositions of RUSSELL and DUFFY cannot be obtained through other less burdensome or intrusive means. As stated, the information has already been produced by the TOWN. Nor does plaintiff distinguish any of the cases cited by the TOWN which support itsentitlement to the protective order. 14. Plaintiff DIMONTE argues that DUFFY "is a witness who would certainly have to review the agreement with the County to upgrade the traffic light at the intersection and will likely upgrade." have information about the timing of the (Nielsen Affirmation, NYSCEF 746 ¶l0). This "agreement" is a baseless claim that misstates the contents of the between the County and the Town. That agreement, in fact, provides for the County's design and installation of the traffic light, with the Town's obligation to maintain the light in good repair after the installation by the County on the County Road. DIMONTE also asserts that the Town's decision to post signage on Love Lane (Nielsen affirmation $10) somehow equates with a duty to post signage on a County road that the Town does not own. This notion is incorrect and certainly does not create materiality where none exists. 15. The case law is clear that Courts are called on to not limit the depositions of high- ranking government officials as otherwise such officials would spend "an inordinate amount of litigation." time tending to pending Id. The prejudice and expense to the TOWN to permit its two highest ranking government officials to be removed from their official duties to provide information which has already been produced is significant and justifies the issuance of a protective order. Plaintiff's silence on this argument is telling. WHEREFORE, it is respectfully requested that the Court issue a Protective Order, pursuant to CPLR 3103, vacating plaintiff's Notices of Deposition of Scott Russell and William Duffy upon the ground that the depositions sought herein are duplicative, unduly burdensome, do 6 6 of 7 FILED: SUFFOLK COUNTY CLERK 12/08/2020 03:59 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 747 RECEIVED NYSCEF: 12/08/2020 plaintiffs' not bear on the issues in the lawsuit, and are not material and necessary to the claims and are thus improper, together with such other and further relief isjust and proper. Dated: December 8, 2020 Nesconset, New York J IUA S. SHTEIERMAÑ 7 7 of 7