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 0870472021 09:58 AM

NYSCEF DOC. NO. 803

UPREME COURT OF THE STATE OF NEW YORK
OUNTY OF SUFFOLK

Qn

ALICIA M. ARUNDEL; SUZANNE SCHULMAN, AS
ADMINISTRATRIX OF THE ESTATE OF BRITTNEY
M. SCHULMAN, DECEASED; OLGA LIPETS; MINDY
GRABINA, AS ADMINSTRATRIX OF THE ESTATE
OF AMY GRABINA, AND MINDY GRABINA,

RECEIVED NYSCEF:

Index No.: 611214/15

INDIVIDUALLY ; STEVEN BARUCH, AS ADMINISTRATOR

OF THE ESTATE OF LAUREN BARUCH, DECEASED,
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
ROYALE LIMOUSINE and “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,

Defendants.

STEVEN A. STEIGERWALD, an attomey duly admitted

hereby sets forth the following upon information and belief:

1. I am associated with the Law Office of Eric D.

AFFIRMATION

in the State of New Y ork

Feldman, attomeys 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

maintained for the defense of the within matter.

ased upon a review of the file

2. I submit this Affirmation in support of the instant motion which seeks an Order:

(a) pursuant to section 753 and section 756 of the Judiciary Law

holding JEFFREY LANGE in

contempt of Court for willfully refusing to honor a judicial subpoena served on him, (b) granting

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attorney’s fees for the costs of this proceeding; (c) issuing an order compelling JEFFREY
LANGE to comply with the judicial subpoena served on them within 30 days after service of a
copy of the order of this Court; and (d) such other, further and different relief as the court may
deem just, equitable and proper

3. The case arises out of a 2-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 Y ork. 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 tums onto secondary roads
and U-turms where permitted. At this intersection there was also a left tun 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-Tums in either direction
on the county road. One of the vehicles that was involved was an extended limousine which had
been extended by CABOT under a FORD program.

4. The eight cases were commenced individually. CABOT was not named as a party
in the initial pleadings. Subsequently, Supplemental Summonses and A mended Complaints were
served in each action naming CABOT as an additional party. 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

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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. There was a criminal investigation commenced by the Suffolk County District
Attorney’s Office. The Suffolk County District Attorney’s Office retained Jeffrey Lange to
examine the vehicles involved in the incident. A fter the criminal Grand Jury was completed, Mr.
Lange was called to testify in an investigative Grand Jury. A copy of his testimony in the
investigative Grand Jury is annexed as Exhibit D. That Grand Jury issued a report in which Mr.
Lange’s testimony was cited. A copy is annexed as Exhibit E. Since that time, the criminal
action against Mr. Pino has been dismissed (and the dismissal was upheld by the Appellate
Division) and Mr. Romeo has plead guilty. There are no longer any criminal actions pending.

6. Discovery has been ongoing. During discovery, your affirmant’s office issued a
subpoena duces tecum upon Mr. Lange for his file. A copy of the subpoena and notice are
collectively annexed as Exhibit F. Mr. Lange provided a copy of his file under cover letter dated
January 12, 2021. A copy of the letter and file are annexed collectively hereto as Exhibit G.

7. After reviewing his file, a subpoena and notice were issued for his deposition. A
copy of the subpoena and notice are collectively annexed hereto as Exhibit H. In response, Mr.
Lange demanded he be reimbursed for his time. A copy of his letter dated March 24, 2021 is

annexed as Exhibit I. In a telephone conversation on May 10, 2021, we agreed to reimburse Mr.

Lange for his time at the rate of $300 per hour and he agreed to waive the requirement for a
retainer. At that time, it was agreed that his deposition would take place on June 24, 2021. This
agreement was confirmed in an email from Mr. Lange’s office and an email from my office on
May 10, 2021. Copies of the emails and the further deposition notice are collectively annexed

hereto as Exhibit J.

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8. On June 18, 2021, just prior his scheduled deposition, Mr. Lange’s office
contacted us to advise that he could only stay until 2 p.m. A copy of the email is annexed as
Exhibit K. Since the deposition was likely to last beyond that time, the date had to be adjourned.
A copy of the June 18, 2021 email is annexed as Exhibit L. On June 18, 2021, his office
provided a new date of July 8, 2021. On June 21, 2021 we agreed to that date and time and then
advised that one of the plaintiffs was not available. Copies of the three emails are annexed hereto
collectively as Exhibit M. His office advised by email dated June 22, 2021 that they would have
to get back to us with an additional date. A copy of the email is annexed as Exhibit N.

9. subsequently received a call from someone claiming to be an attomey in
Michigan. She told me her name was Shannon Kos and that Mr. Lange had changed his mind
and would no longer appear pursuant to the subpoena. She insisted that he was an expert for a
party in this action and therefore could not be forced to testify. Despite me informing her that she
was not correct, she refused to listen to any of my responses instead preferring to talk over me.
She also said that he had testified in the Grand Jury and that he could not be asked questions

about his Grand Jury testimony. I informed her that there were two Grand Juries, that we would

not ask him about his testimony in the criminal Grand Jury but that his testimony in the civil
Grand Jury had been provided and that this was subject to deposition as our client had not had a

chance to question him during the Grand Jury process. | also informed her that he was the first

one to inspect the vehicle, that the anti-intrusion bar had been attached when he started his
inspection and that he had dislodged it in the process of conducting his inspection (see page 133
of Exhibit E). I told her we were entitled to explore all of his observations and conclusions that

are part of the report. The person that called would not listen or discuss anything. She was intent

on talking over me. When I told her that Mr. Lange should have moved to quash the subpoena,

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she told me he would not show up. As she continued to try to tell me about New Y ork law, I told
her we would move to hold him in contempt and terminated the call as she would not listen to
anything I said to rebut the numerous incorrect assertions. I subsequently received an email from
her. A copy is annexed as Exhibit 0. The email continues to miss the point although she now
acknowledges that Mr. Lange is not an expert retained by any of the parties to this action. I have
looked up Ms. Kos in the New Y ork State Unified Court System listing of attorneys and there is
no admission to the bar reflected for Ms. Kos in New Y ork.

10. CPLR 3101(a) provides for “full disclosure of all matter material and necessary in
the prosecution or defense of an action ....” Regardless of the device used to secure the datum or
thing, the basic question of whether it is subject to disclosure is govemed by CPLR 3101(a) and
not by the particular provision supplying the device to obtain the

information. See, eg., Kavanagh v. Ogden Allied Maint. Corp., 92 N.Y .2d 952 (1998)

11. CPLR 3101(a) sets forth the criterion for disclosure under the CPLR. It requires
“full disclosure of all matter material and necessary in the prosecution or defense of an action....”
The key words are “material and necessary.” In the leading case, Allen, the New Y ork Court of
Appeals interpreted the New Y ork CPLR phrase “material and necessary” to mean nothing more
or less than “relevant,” saying that the phrase must be “interpreted liberally to require disclosure,
upon request, of any facts bearing on the controversy which will assist preparation for trial by
sharpening the issues and reducing delay and prolixity. The test is one of usefulness and

reason.” Allen v. Crowell-Collier Publishing Company, 21 N.Y .2d 403 at 406 (1968); Forman v.

Henkin, 30 N.Y .3d 656, 661 (2018); Andon v. 302-304 Mott St. Assoc., 94 N.Y.2d 740, 746

(2000).

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12. Disclosure under the CPLR is, therefore, mandated if it is “relevant.” The word
“material” implies something heavier than “relevant.” That which is material to the case would
be relevant to it, though the converse would not necessarily hold. Nonetheless, “relevant” has
been the meaning assigned to “material” by the Court of Appeals. As for the word “necessary,”

the Allen case supports the proposition that information which is “relevant” to the litigation is

also “necessary” to it. Kapon v. Koch, 23 N.Y .3d 32, 38 (2014).

13. The subpoena and notice which were served for Mr. Lange’s deposition are
proper. The information sought conceming his observations and actions during his inspection are
not producible in any other way. During his inspection, parts were moved, taken off or otherwise
disturbed from their post-accident condition. The testimony about the placement of these parts,
his testimony in the civil Grand Jury and his conclusions likewise are material and necessary and
important to the defense of this matter. No motion to quash has ever been made on his behalf. As

the Court of Appeals ruled in Brunswick Hospital Center, Inc. v Hynes, 52 NY 2d 333 (1981), the

Court of Appeals held at page 339:

“A motion to quash or vacate, of course, is the proper and exclusive

vehicle to challenge the validity of a subpoena or the jurisdiction of the
issuing authority (e.g., Matter of Santangello v People, 38 NY 2d 536,
539; see Carlisle v Bennett, 268 NY 212, 218). Such a motion must be
made promptly, generally before the return date of the subpoena (id.;
see CPLR 2304; see, also, Fed Rules Civ Pro, rule 45, subd [b]).”

No such motion was ever made. Mr. Lange just refused to appear.

14. Additionally, even had Mr. Lange made the motion, it would properly be denied:

"The person challenging the subpoena bears the burden of demonstrating a lack of authority, a

lack of relevancy or a lack of a factual basis for the issuance of the subpoena" ( Hogan v.

Cuomo, 67 A.D.3d 1144 (3rd. Dept. 2009). "An application to quash a subpoena should be

granted only where the futility of the process to uncover anything legitimate is inevitable or

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obvious, or where the information sought is utterly irrelevant to any proper inquiry" ( Anheuser-
Busch, Inc., v. Abrams, 71 N.Y .2d 327 (1988); Velez v. Hunts Point Multi-serv. Ctr., Inc., 29

A.D.3d 104 (1st. Dept. 2006); Empire Wine & Spirits LLC v. Colon, 145 A.D.3d 1157 (3rd.

Dept. 2016); Hogan v. Cuomo, Supra; Ayubo v. Eastman Kodak Company, 158 AD2d 641 (2d

Dept., 1990).

15. | We will not be asking him what his testimony was in the Criminal Grand Jury.

However, we are entitled to ask questions concerning what he did at the inspections and

investigation and what his conclusions were as well as the basis for them and his knowledge and

experience to establish the basis for those conclusions. The cases cited by the Michigan attorney
are inapplicable to the Civil Grand Jury. Her claim that we cannot depose him at all because he is
an expert does not apply. She concedes that he is not an expert of any party to this action. She

cites 232 Broadway Corp. v New Y ork Prop. Ins. Underwriting Assn., 171 AD2d 861 (2d Dept.,

1991). Unfortunately, that case is not applicable because it deals with whether a party’s expert
can be deposed. That is not the case in this circumstance. She also cites Halpin v Chub

Indemnity Insurance Company, 2019 WL 1851338 (N.Y .Sup.), 2019 N.Y. Slip Op. 31083(U)

(Trial Order), a Supreme Court, Suffolk County case. That case also deals with the deposition of
a party’s expert, something that is not present here.
16. The last case she cites is Aitcheson v Lowe, 2014 WL 12711935 (NY Sup), 2014

N.Y. Slip Op. 33880(U) (Trial Order) S/Dutchess. In that case Police Officers were allowed to

testify at trial about their observations at an accident scene but were not allowed to give opinions
because the expert disclosure did not provide sufficient background for them to be
qualified as experts. This is not a trial subpoena. It is a deposition subpoena. During the

deposition, Mr. Lange’s background can be addressed.

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17. There is no excuse that has been proffered by or on behalf of Mr. Lange for his
refusal to appear for deposition. His testimony at a deposition is material and necessary. He
should be compelled to appear. His refusal has resulted in litigation expenses to this office for
the preparation and service of this motion.

WHEREFORE, it is respectfully requested that the Court issue an Order: (a) pursuant to
section 753 and section 756 of the Judiciary Law holding JEFFREY LANGE in contempt of
Court for willfully refusing to honor a judicial subpoena served on him, (b) granting attorney’s
fees for the costs of this proceeding; (c) issuing an order compelling JEFFREY LANGE to
comply with the judicial subpoena served on them within 30 days after service of a copy of the
order of this Court; and (d) such other, further and different relief as the court may deem just,
equitable and proper

Dated: August 3, 2021
Melville, New Y ork

STEVEN A. STEIGERWALD

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