Preview
FILED: NEW YORK COUNTY CLERK 01/04/2022 11:27 AM INDEX NO. 162502/2015
NYSCEF DOC. NO. 328 RECEIVED NYSCEF: 01/04/2022
Page 1
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- - - - - - - - - - - - - X
IN RE: 260 MADISON AVENUE HVAC UNIT
COLLAPSE CASE MANAGEMENT
Index No.
783000/2018
- - - - - - - - - - - - - X
VIDEOCONFERENCED DEPOSITION of
the Defendant, MARINE & INDUSTRIAL
TESTING SOLUTIONS, by a Witness, THOMAS
FITZGERALD BENTON, taken by STEVEN H.
KAPLAN, in the above-entitled action,
pursuant to Court Order, commencing
December 10, 2021 at 10:07 a.m., taken
before ARIELLA BOROCHOFF, a Shorthand
Reporter and Notary Public within and
for the State of New York.
Magna Legal Services
(866)624-6221
www.MagnaLS.com
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Page 2 Page 3
1 1
2 A P P E A R A N C E S: 2 (C O N T I N U E D
3 FINAZZO COSSOLINI O'LEARY MEOLA & A P P E A R A N C E S)
HAGER, LLC 3
4 Attorneys for Plaintiff GORDON REES SCULLY MANSUKHANI, LLP
260-261 Madison Avenue, LLC 4 Attorneys for Defendant
5 5 Penn Plaza 500 Mamaroneck Avenue
New York, New York 10001 5 Suite 503
6 BY: BRENDAN M. WENGERTER, ESQ. Harrison, New York 10528
brendan.wengerter@finazzolaw.com 6 BY: MICHAEL J. SCHACHER, ESQ.
7 mschacher@grsm.com
8 CASCONE & KLUEPFEL LLP 7
Attorneys for Defendant 8
9 MARINE & INDUSTRIAL TESTING SARETSKY KATZ & DRANOFF, LLP
SOLUTIONS 9 Attorneys for Plaintiff on
10 1399 Franklin Avenue counterclaim
Suite 302 10 GREG & PRISCILLA WELCH
11 Garden City, New York 11530
475 Park Ave South
BY: DAVID F. TAVELLA, ESQ. 11 Suite 26
12 dtavella@cklaw.com
13 New York, New York 10016
PILLINGER, MILLER, TARALLO, LLP
12 BY: MATTHEW HUGHES, ESQ.
14 Attorneys for Fourth Third-Party
13
Defendant 14 WILLIAMS & CONNOLLY, LLP
15 PENGUIN AIR CONDITIONING CORP. Attorneys for Third Third-Party
232 Madison Avenue 15 Defendant and Fourth Third-Party
16 Suite 909 Defendant
New York, New York 10016 16 JOHNSON CONTROLS, INC.
17 BY: STEVEN H. KAPLAN, ESQ. 725 12th Street NW
skaplan@pmtlawfirm.com 17 Washington, DC 20005
18 BY: AMY B. MCKINLAY, ESQ.
19 LITCHFIELD CAVO, LLP 18 amckinlay@wc.com
Attorneys for Defendant 19
20 260-261 MADISON AVENUE, LLC, JAY H. TANENBAUM LAW FIRM
SFM CONSTRUCTION, LLC, and ASRR 20 Attorneys for Plaintiff on
21 CONSTRUCTION, LLC counterclaim
420 Lexington Avenue 21 GREG & PRISCILLA WELCH
22 Suite 2104 14 Wall Street
New York, New York 10170 22 New York, New York 10005
23 BY: MORGAN E. MUELLER, ESQ. BY: MARC D. CITRIN, ESQ., of Counsel
muellerm@litchfieldcavo.com 23
24 24
25 (A P P E A R A N C E S 25
Page 4 Page 5
1 1
2 STIPULATION 2 extent permitted by CPLR Rule 3115 or by
3 IT IS STIPULATED AND AGREED by and 3 this rule, during the course of the
4 between the attorneys for the respective 4 examination persons in attendance shall
5 parties herein, and in compliance with 5 not make statements or comments that
6 Rule 221 of the Uniform Rules for the 6 interfere with the questioning.
7 Trial Courts: 7 THAT a deponent shall answer all
8 THAT the parties recognize the provision 8 questions at a deposition, except (i) to
9 of Rule 3115 subdivisions (b), (c) 9 preserve a privilege or right of
10 and/or (d). All objections made at a 10 confidentiality, (ii) to enforce a
11 deposition shall be noted by the officer 11 limitation set forth in an order of a
12 before whom the deposition is taken, and 12 court, or (iii) when the question is
13 the answer shall be given and the 13 plainly improper and would, if answered,
14 deposition shall proceed subject to the 14 cause significant prejudice to any
15 objections and to the right of a person 15 person. An attorney shall not direct a
16 to apply for appropriate relief pursuant 16 deponent not to answer except as
17 to Article 31 of the CPLR; 17 provided in CPLR Rule 3115 or this
18 THAT every objection raised during a 18 subdivision. Any refusal to answer or
19 deposition shall be stated succinctly 19 direction not to answer shall be
20 and framed so as not to suggest an 20 accompanied by a succinct and clear
21 answer to the deponent and, at the 21 statement on the basis therefore. If
22 request of the questioning attorney, 22 the deponent does not answer a question,
23 shall include a clear statement as to 23 the examining party shall have the right
24 any defect in form or other basis of 24 to complete the remainder of the
25 error or irregularity. Except to the 25 deposition.
2 (Pages 2 to 5)
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1 1
2 THAT an attorney shall not interrupt the 2 is taken, shall not be deemed a waiver
3 deposition for the purpose of 3 of the rights provided by Rules 3116 and
4 communicating with the deponent unless 4 3117 of the C.P.L.R, and shall be
5 all parties consent or the communication 5 controlled thereby; and
6 is made for the purpose of determining 6 THAT the certification and filing of the
7 whether the question should not be 7 original of this examination are hereby
8 answered on the grounds set forth in 8 waived; and
9 Section 221.2 of these rules, and, in 9 THAT the questioning attorney shall
10 such event, the reason for the 10 provide counsel for the witness examined
11 communication shall be stated for the 11 herein with a copy of this examination
12 record succinctly and clearly. 12 at no charge.
13 THAT the failure to object to any 13
14 question or to move to strike any 14
15 testimony at this examination shall not 15
16 be a bar or waiver to make such 16
17 objection or motion at the time of the 17
18 trial of this action, and is hereby 18
19 reserved; and 19
20 THAT this examination may be signed and 20
21 sworn to by the witness examined herein 21
22 before any Notary Public, but the 22
23 failure to do so or to return the 23
24 original of the examination to the 24
25 attorney on whose behalf the examination 25
Page 8 Page 9
1 T. BENTON 1 T. BENTON
2 MR. KAPLAN: To the effect 2 THOMAS B E N T O N, the Witness
3 that this deposition which is 3 herein, having been first duly sworn by
4 being held pursuant to Court 4 a Notary Public of the State of
5 Order is limited in scope and it 5 New York, was examined and testified as
6 is a jurisdictional deposition 6 follows:
7 only. 7 EXAMINATION
8 Therefore, once the 8 BY MR. KAPLAN:
9 jurisdictional issue is resolved 9 THE STENOGRAPHER: State
10 and should Marine & Industrial 10 your name for the record, please.
11 remain within the lawsuit, we 11 THE WITNESS: Thomas
12 reserve the right to recall this 12 Fitzgerald Benton.
13 or other appropriate witnesses 13 THE STENOGRAPHER: State
14 from Marine & Industrial to give 14 your address for the record,
15 testimony with respect to the 15 please.
16 substance of the allegations that 16 THE WITNESS: 150 Virginia
17 issue in this lawsuit. 17 Street, Mobile, Alabama 36603.
18 MR. TAVELLA: I will 18 Q. Good morning, Mr. Benton.
19 stipulate that should testimony 19 Can you hear us, Mr. Benton?
20 be needed on the liability 20 A. Yes, I can hear you.
21 aspect, Marine & Industrial will 21 Q. Okay. My recommendation would
22 produce a witness to testify. 22 be to leave the mute button off because
23 MR. KAPLAN: Okay. That's 23 you're going to be answering questions
24 fine. 24 throughout.
25 -o0o- 25 Now, the address that you just
3 (Pages 6 to 9)
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1 T. BENTON 1 T. BENTON
2 gave is the business address or one of 2 you are testing remotely, the oath that
3 the business addresses, I should say, 3 you just took is the same oath that you
4 of Marine & Industrial, and not your 4 would take if you were present in court
5 residence address; is that correct? 5 and it has the same force and effect;
6 A. Correct. 6 do you understand that?
7 MR. KAPLAN: David, can we 7 A. Yes.
8 stipulate that I won't ask the 8 Q. Now, the testimony that we are
9 witness' residence address, but 9 taking of you today is an important
10 if required for trial, Marine & 10 part of the lawsuit and it can be
11 Industrial will produce him for 11 utilized in various means either at
12 so long as he is still employed 12 trial or at -- or on motions before the
13 by the company and provide his 13 court, so it's very important that you
14 last known address, should he not 14 testify accurately; do you understand
15 be? 15 that?
16 MR. TAVELLA: Yes, so 16 A. Yes.
17 stipulated. 17 Q. Now, with that regard I'm going
18 MR. KAPLAN: Okay. 18 to be asking you a series of questions
19 Q. Sir, let me just give you some 19 that I believe to be pertinent to this
20 basic instructions concerning the 20 lawsuit and some of the other attorneys
21 deposition process before I get started 21 who are present on this remote
22 with questioning you. 22 deposition, they will also ask you
23 First off, you are under oath, 23 questions.
24 and while you are not physically 24 It's important that you listen
25 present with us or in a courthouse and 25 carefully to the question and that you
Page 12 Page 13
1 T. BENTON 1 T. BENTON
2 understand what I'm asking you. At 2 Supply Company, Inc. If I use the term
3 times my questions might not be perfect 3 Marine & Industrial rather than the
4 and at times your lawyer may object and 4 full name Marine & Industrial Supply
5 I may rephrase the question, but the 5 Company, Inc., will you understand who
6 important thing is that you understand 6 I'm referring to?
7 the question. 7 A. Yes.
8 So if at any time you do not 8 Q. Okay. Now, the questions that
9 understand my question, please let me 9 I'll -- strike that.
10 know that and I will attempt to 10 We don't want you to be guessing
11 rephrase it in a manner that you do 11 when you answer questions, but you may
12 understand; do you agree to that? 12 answer questions based upon information
13 A. Yes. 13 that you obtained from other people
14 Q. So if you do answer a question 14 within the company or from your own
15 we will have to assume as will the 15 knowledge, and you may approximate. Do
16 court and the jury that you understood 16 you understand the difference between
17 the question and that the answer you 17 guessing and approximating?
18 gave was in response to the question 18 A. Yes.
19 that I asked. So it's important that 19 Q. Now, one of the peculiarities of
20 you if don't understand, you let me 20 testifying is that when we engage in
21 know; do you understand that? 21 day-to-day communications, we very
22 A. Yes. 22 often will utilize gestures, nods of
23 Q. Okay. Now, we are going to be 23 the head, things like "Mmm-hmm" or
24 asking you questions that pertain to 24 "Uh-uh" as part of our communication
25 the business of Marine & Industrial 25 process.
4 (Pages 10 to 13)
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1 T. BENTON 1 T. BENTON
2 And some of us New Yorkers are 2 Q. Didn't think so, but I always
3 notorious for this, we'll start 3 that. And have you ever been convicted
4 speaking while somebody else is still 4 of any crimes?
5 talking. All of those things have to 5 A. No.
6 be avoided in the deposition process so 6 Q. Have you ever filed for
7 it's important that you answer in words 7 bankruptcy?
8 rather than in gestures or in some 8 A. No.
9 other manner. 9 Q. Sir, what is your highest level
10 And further it's important that 10 of education that you have?
11 you let me finish speaking before you 11 A. I have a college degree.
12 begin speaking and I'll attempt to give 12 Q. From where and in what?
13 you the same courtesy; do you 13 A. University of Alabama in Human
14 understand that? 14 Environmental Sciences.
15 A. Yes. 15 Q. What year?
16 Q. Okay. Now, I just have some 16 A. 2001, approximately, 2002.
17 background questions that I always ask 17 Q. And how old are you now?
18 that shouldn't offend you that I'm 18 A. 43.
19 asking these things, it's just a matter 19 Q. Did you review any documents in
20 of routine. 20 preparation for this deposition before
21 Sir, are you currently under the 21 coming here today?
22 influence of any drugs or alcohol that 22 A. No.
23 may affect your memory or your ability 23 Q. Did you have any discussions
24 to testify accurately today? 24 with anybody other than your attorney
25 A. No. 25 about the substance of your anticipated
Page 16 Page 17
1 T. BENTON 1 T. BENTON
2 testimony today? 2 deposition before?
3 A. Nope. 3 A. No.
4 Q. Oh, you're making this easy. 4 Q. Have you ever given testimony at
5 Where are you currently sitting as 5 a trial?
6 you're giving testimony? 6 A. No.
7 A. In a chair. 7 Q. Now, I understand you are the
8 Q. Thank you. I could see that. 8 President of Marine & Industrial; is
9 And where is the chair located? 9 that correct?
10 A. In my office. 10 A. Yes.
11 Q. And where is your office 11 Q. And how long have you been
12 located? 12 president?
13 A. On 50 Virginia Street. 13 A. Ten years.
14 Q. Is your office within the 14 Q. So since, approximately, 2011 or
15 offices of Marine & Industrial? 15 thereabouts?
16 A. Yes. 16 A. If your math is correct.
17 Q. Is there anybody else present 17 Q. I'm just subtracting ten from
18 within the office? 18 your 2021; does that sound about right
19 A. Nope. 19 to you?
20 Q. And will you agree to inform us 20 A. Yes.
21 should somebody else enter the office 21 Q. And during the, approximately,
22 while you're giving testimony? 22 ten years that you have been president,
23 A. Yes. 23 have your duties and responsibilities
24 Q. Now, sir, have you ever been -- 24 change in any way?
25 have you ever given testimony at a 25 A. No.
5 (Pages 14 to 17)
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1 T. BENTON 1 T. BENTON
2 Q. Could you describe what your 2 involvement in marketing?
3 duties and responsibilities as 3 A. I mean, I'm involved in the
4 President of Marine & Industrial are? 4 marketing process.
5 A. I am responsible for the 5 Q. In what ways are you involved in
6 business of Marine & Industrial supply. 6 the marketing process?
7 Q. And can you embellish a little 7 A. Through making marketing
8 bit about what that entails? 8 decisions.
9 A. That entails the basic runnings 9 Q. And I asked in addition to
10 of a business. 10 making marketing decisions, do you do
11 Q. Okay. And in terms of the 11 anything else with respect to
12 basing runnings of the business, are 12 marketing?
13 you directly involved in marketing for 13 A. Make marketing decisions.
14 the business? 14 Q. So the answer is, That's all?
15 A. We have -- yes. 15 A. I make marketing decisions.
16 Q. What specifically do you do in 16 Q. Okay. Before you became
17 terms of your direct involvement in 17 President of Marine & Industrial, did
18 marketing? 18 you have any prior job titles within
19 A. I choose the marketing company 19 the company?
20 that we use and we outsource that, 20 A. I mean, we don't really have
21 decision-making processes. 21 very many job titles, we're a small
22 Q. In addition to choosing the 22 business.
23 marketing company used for outsourcing 23 Q. When did you start working for
24 and in addition to decision-making 24 Marine & Industrial?
25 processes, do you have any other direct 25 A. 2004, '5, approximately.
Page 20 Page 21
1 T. BENTON 1 T. BENTON
2 Q. What is your relationship with 2 100 percent owner of the company?
3 Leroy H. Benton, III? 3 A. Yes.
4 A. He's my father. 4 Q. Now, between the years of 2004
5 Q. Is he still actively involved in 5 and 2005 and the time that you became
6 the company? 6 president in, approximately, 2010 or
7 A. Nope. 7 2011, what were your responsibilities
8 Q. When did he stop being actively 8 with the company?
9 involved? 9 A. Sweeping the floors.
10 A. 2010, approximately. 10 Q. Did you jump from sweeping
11 Q. Did the time that he stopped 11 floors to being president or were there
12 being actively involved coincide with 12 some other responsibilities in between
13 the time that you became president? 13 that?
14 A. Approximately. 14 A. Made some deliveries.
15 Q. And is the company privately 15 Q. Would it be an accurate
16 owned? 16 statement, sir, that you went from
17 A. Yes. 17 sweeping floors and making some
18 Q. And do you have an ownership 18 deliveries to becoming president of the
19 interest in the company? 19 company and in that capacity making
20 A. Yes. 20 decisions on behalf of the company
21 Q. Does anybody else have an 21 without any further decision -- or
22 ownership interest in the company? 22 without any prior decision-making
23 A. No. 23 involvement?
24 Q. So would it be an accurate 24 MR. TAVELLA: Note my
25 statement that you are currently 25 objection. You can answer.
6 (Pages 18 to 21)
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1 T. BENTON 1 T. BENTON
2 MR. KAPLAN: You could 2 Marine & Industrial who is most
3 object, David, but we could be 3 knowledgeable about the company's
4 here until the end of the day if 4 effort to market its products and
5 the Witness isn't a little bit 5 services in the State of New York
6 more forthcoming about answering 6 during the period of 2008 through the
7 questions -- 7 present?
8 A. Sweeping floors is an important 8 MR. TAVELLA: Objection.
9 part of the business. 9 You're assuming there is an
10 Q. I'm sure it must be and making 10 effort to market in New York.
11 deliveries is as well. I'm asking you 11 You can answer. You can answer
12 between 2004 and 2005 when you started 12 the question.
13 with the company and the date that you 13 THE WITNESS: Answer the
14 became president of the company, 14 question?
15 whether you did anything other than 15 MR. TAVELLA: Yeah.
16 sweep floors and make a few deliveries. 16 A. Yes.
17 A. With this particular business, 17 MR. KAPLAN: David, your
18 that's what I did. 18 voice is coming in very low on my
19 Q. And that is all that you did for 19 end. I don't know if other
20 Marine & Industrial during that period 20 people are encountering that.
21 before you became president? 21 ---
22 A. Yes. 22 (Whereupon, an
23 Q. I'm sorry, was that yes? 23 off-the-record discussion was
24 A. Yes. 24 held at this time.)
25 Q. Sir, are you the person with 25 ---
Page 24 Page 25
1 T. BENTON 1 T. BENTON
2 Q. Now, sir, is Marine & Industrial 2 office at that location?
3 an Alabama corporation? 3 A. Since 1975.
4 A. Yes. 4 Q. Now, I understand that you also
5 Q. And it was founded by your 5 have -- when I say "you" I'm referring
6 father, I understand? 6 to Marine & Industrial, have a sales
7 A. Yes. 7 office at 37108 Easley Melancon Road,
8 Q. What is incorporated in or about 8 Prairieville, Louisiana; is that
9 the year 1975? 9 correct?
10 A. Yes. 10 A. Yes.
11 Q. Now, are there currently any 11 Q. And I understand from your
12 other officers of the company in 12 website that you had that address from
13 addition to yourself as president? 13 the year 2007; is that correct?
14 A. No. 14 A. Approximately.
15 Q. There's no secretary, vice 15 Q. Okay. Are those the only two
16 president or anything like that? 16 locations -- or the only two states, I
17 A. No. 17 should say, in which Marine &
18 Q. And the main office is located 18 Industrial currently has any offices?
19 at 150 Virginia Street, Mobile, 19 A. Yes.
20 Alabama? 20 Q. Are they the only states in
21 A. Yes. 21 which Marine & Industrial has
22 Q. And that's currently where you 22 historically had any offices?
23 are, you indicated, correct? 23 A. Yes.
24 A. Yes. 24 Q. How would you categorize -- what
25 Q. How long has the company had an 25 would you categorize the business of
7 (Pages 22 to 25)
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1 T. BENTON 1 T. BENTON
2 Marine & Industrial as? 2 Q. And is that historically the
3 MR. TAVELLA: Objection to 3 case in -- and not just today?
4 form. You can answer. 4 A. Yes.
5 THE WITNESS: I'm sorry, 5 Q. And you used the word
6 David, you were a little bit 6 "fabricate" in connection with your
7 mumbled. 7 below-the-hook products; is there a
8 MR. TAVELLA: You can answer 8 difference in your mind between the
9 the question. 9 word "fabricate" and the word
10 THE WITNESS: Answer the 10 "manufacture"?
11 question? 11 A. Yes.
12 MR. TAVELLA: Yeah. 12 Q. Could you describe that
13 A. We fabricate below-the-hook 13 difference to me?
14 lifting devices. 14 A. Manufactures, in my opinion is
15 Q. Now, your website dates that you 15 when you take a raw -- you take raw
16 also sell products from other companies 16 products and you blend them into
17 that you refer to as vendor partners; 17 something else. When you fabricate
18 is that so? 18 something, you take pre-engineered,
19 A. Yes. 19 other people's products and you make
20 Q. So would it be an accurate 20 them to -- you combine them together,
21 statement that Marine & Industrial 21 you don't change any of the integrities
22 markets products that it fabricates on 22 of the materials, you just piece them
23 its on as well as products that are 23 together to a specific length or width
24 manufactured by others? 24 or, you know, a customer's desired
25 A. Yes. 25 speck, but you're not manufacturing --
Page 28 Page 29
1 T. BENTON 1 T. BENTON
2 you're not changing the overall product 2 A. It's who you call when you have
3 into a new product. You know, 3 to pick something up. It's the
4 fabrication is -- yeah. 4 industry that lifts products and
5 Q. Okay. Thank you for that. And 5 materials.
6 without necessarily agreeing or 6 Q. Are we referring to the use of
7 disagreeing with you concerning the 7 cranes, in particular, and derricks and
8 distinction I'll use the word 8 things of that nature?
9 "fabricate" or "fabrication" because 9 A. Any kind of device that has to
10 that's the word you're comfortable 10 be moved, yes.
11 with; is that understood? 11 Q. And when you say, Offshore
12 A. Yes. 12 solutions, what does that refer to?
13 Q. Now, the website from Marine & 13 A. Our business is in the oil and
14 Industrial states that the company has 14 gas business as well, offshore
15 -- and I'm quoting, Has provided the 15 platforms.
16 lifting and rigging industry premium 16 Q. Are these offshore platforms
17 brand products and first class customer 17 within the territorial waters of the
18 service since 1975. And is the Gulf 18 United States or elsewhere?
19 Coast regions -- I'm quoting again, Top 19 A. Yes, they're in the United
20 choice for rigging and offshore 20 States, specifically, the Gulf of
21 solutions. Are you familiar with that 21 Mexico.
22 representation from the website? 22 Q. And when you say "the Gulf of
23 A. Yes. 23 Mexico," are you referring to the
24 Q. What is your understanding of 24 territorial waters of those states that
25 the term lifting and rigging industry? 25 adjoin the Gulf of Mexico?
8 (Pages 26 to 29)
FILED: NEW YORK COUNTY CLERK 01/04/2022 11:27 AM INDEX NO. 162502/2015
NYSCEF DOC. NO. 328
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ARMEN BEGOYAN VS CITY OF LOS ANGELES, ET AL.
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Case Number:
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Hearing Date:
July 11, 2024
Dept:
32
PLEASE NOTE
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Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.
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sscdept32@lacourt.org
indicating that partys intention to submit.
The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling.
If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.
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TENTATIVE RULING
DEPT
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32
HEARING DATE
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July 11, 2024
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21STCV34525
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MOVING PARTY:
Defendant City of Los Angeles
OPPOSING PARTY:
None
BACKGROUND
Defendant City of Los Angeles (
Defendant) moves for terminating sanctions against Plaintiff
Armen Begoyan (Plaintiff) for failure to comply with the Courts April 26, 2024 discovery order. Defendant seeks to dismiss the entire action. No opposition has been filed.
LEGAL STANDARD
To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose&sanctions against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc. section 2023.030.) The court may impose a terminating sanction for misuse of the discovery process by any of the following: (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process; (2) An order staying further proceedings by that party until an order for discovery is obeyed; (3) An order dismissing the action, or any part of the action, of that party; (4) An order rendering a judgment by default against that party. (Code Civ. Proc. § 2023.030(d).)
Failing to respond or to submit to an authorized method of discovery, or
disobeying a court order to provide discovery,
constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d), (g).)
The trial court may order a terminating sanction for discovery abuse after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery. (
Los Defensores, Inc. v. Gomez
(2014) 223 Cal.App.4th 377, 390, quoting
Lang v. Hochman
(2000) 77 Cal.App.4th 1225, 1246.)
Generally, [a] decision to order terminating sanctions should not be made lightly.
But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. (
Los Defensores, supra
, 223 Cal. App. 4th at p. 390 [citation omitted].)
Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (
Los Defensores, supra
, 223 Cal.App.4th at p. 390 citing
Lang, supra
, 77 Cal.App.4th at pp. 1244-1246 [discussing cases]; see, e.g.,
Collisson & Kaplan v. Hartunian
(1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed (by striking the defendants Answer and subsequently granting default judgment) after defendants failed to comply with one court order to produce discovery];
Laguna Auto Body v. Farmers Ins. Exchange
(1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in
Garcia v. McCutchen
(1997) 16 Cal.4th 469, 478, n. 4 [terminating sanctions imposed against the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)
If a party . . . fails to obey an order compelling answers [to interrogatories or requests for production], the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010). (Code Civ. Proc. §§ 2030.290(c); 2031.300(c).)
DISCUSSION
Written discovery was originally served on Plaintiff on March 1, 2023. (Kahramanian Decl. ¶ 2.) On September 21, 2023 and January 11, 2024, Defendants counsel emailed Plaintiffs counsel requesting responses but received no response. (
Id.
¶ 3.)
On April 26, 2024, the Court granted
Defendants unopposed motion to compel Plaintiffs responses to Demand for Production of Documents, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One. Plaintiff was ordered to provide verified responses, without objections, within 10 days. (Min. Order, 4/26/24.) The Court also imposed $700.00 in monetary sanctions against Plaintiff and his counsel of record.
On May 2, 2024, Defendant filed and served electronic notice of the ruling on Plaintiffs counsel. Defendant contends that no responses have been served complying with the Courts order. (Kahramanian Decl. ¶ 4.) Plaintiff has not filed an opposition to this motion.
Therefore, it appears that the discovery was first served in March 2023, and the motion to compel was granted on April 26, 2024. Throughout this time, Defendant sought to obtain responses through informal ways before ultimately obtaining an order to compel. The delay in time also demonstrates that Defendant has been prevented from mounting a defense against this case. Considering the above, the fact Plaintiff did not oppose this motion nor the previous motion to compel, and monetary sanctions have been ineffective, the Court finds Plaintiffs actions to be willful. Therefore, the motion for terminating sanctions is granted.
CONCLUSION
Therefore, Defendant
City of Los Angeles
motion for terminating sanctions is GRANTED. The only remaining defendants are Doe Defendants who have not been named or served, and therefore t
he Court orders the complaint dismissed in its entirety.
If Defendant moves to dismiss the cross-complaint at the hearing on this motion, then the Final Status Conference and Jury Trial dates will be advanced and vacated.
Defendant shall provide notice of the Courts ruling and file a proof of service of such.
Ruling
Gilbert Hernandez vs. In-Shape Health Clubs, LLC
Jul 11, 2024 |
20CV-02521
20CV-02521 Gilbert Hernandez v. In-Shape Health Clubs LLC
Trial Settng Conference
Appearance required. Remote appearances are permitted. Parties who wish to appear
remotely must contact the clerk of the court at (209) 725-4111 to arrange for a remote
appearance. Appear to address the status of case following the unsuccessful mediation
and whether it is time to set this matter for trial.
Ruling
SOCORRO ALEGRIA VS ALTAMED HEALTH SERVICES CORPORATION, A CALIFORNIA CORPORATION, ET AL.
Jul 11, 2024 |
24PSCV00032
Case Number:
24PSCV00032
Hearing Date:
July 11, 2024
Dept:
K
1.
Defendant AltaMed Health Services Corporations Motion for Judgment on the Pleadings is summarily GRANTED in part (i.e., as to the fifth, sixth and tenth causes of action) and otherwise DENIED in part (i.e., as to the eighth and ninth causes of action).
2.
Defendant AltaMed Health Services Corporations Motion to Strike is DENIED as MOOT.
Background
Plaintiff Socorro Alegria (Plaintiff) alleges as follows: Plaintiff was sexually assaulted during her March 22, 2023 medical imaging appointment. On January 3, 2024, Plaintiff filed a complaint, asserting causes of action against AltaMed Health Services Corporation (AltaMed), Jose Luis Sanchez and Does 1-20 for:
1.
Negligent Hiring Retention, Supervision and Failure to Terminate (v. AltaMed only)
2.
Common Law Assault (v. Sanchez only)
3.
Common Law Battery (v. Sanchez only)
4.
Sexual Battery in Violation of Civil Code § 1708.5 (v. Sanchez only)
5.
Violation of Civil Code § 51.7
6.
Sexual Harassment in Violation of Civil Code § 51.9
7.
Intentional Infliction of Emotional Distress (v. Sanchez only)
8.
Negligent Infliction of Emotional Distress
9.
Negligence (v. AltaMed only)
10.
Violation of the Tom Bane Civil Rights Act A Case Management Conference is set for July 11, 2024.
1.
Judgment on the Pleadings
Legal Standard
The rules governing demurrers are generally applicable to a motion for judgment on the pleadings. (
Cloud v. Northrop Grumman Corp.
(1998) 67 Cal.App.4th 995, 999; Code Civ. Proc., § 438, subd. (d) [The grounds for motion. . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice. . ., the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit].)
A motion by a plaintiff may only be made on the grounds that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint. (Code Civ. Proc., § 438, subd. (c)(1)(A).) A motion by a defendant may only be made on the grounds that (1) [t]he court has no jurisdiction of the subject of the cause of action alleged in the complaint or (2) [t]he complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c).)
Although a nonstatutory motion may be made at any time either prior to the trial or at the trial itself (
Stoops v. Abbassi
(2002) 100 Cal.App.4th 644, 650 [quotation marks and citation omitted]), a statutory motion cannot be made after entry of a pretrial conference order or 30 days before the initial trial date, whichever is later, unless the court otherwise permits. (Code Civ. Proc., § 438, subd. (e).)
Discussion
AltaMed moves the court, pursuant to Code of Civil Procedure § 438, for judgment on the pleadings as to the fifth, sixth, and eighth through tenth (i.e., for
Violation of Civil Code § 51.7, Sexual Harassment in Violation of Civil Code § 51.9, Negligent Infliction of Emotional Distress, Negligence and Violation of the Tom Bane Civil Rights Act, respectively)
causes of action in Plaintiffs complaint, on the basis that they each fail to state facts sufficient to constitute causes of action.
At the outset, Plaintiff represents that she agrees to dismiss her fifth, sixth and tenth causes of action, without prejudice (Opp., 1:26-2:2); accordingly, in the event a Request for Dismissal is not on file by the time of the hearing, the court will summarily grant the motion in this regard.
The courts following analysis, then, is limited to Plaintiffs eighth and ninth causes of action, for Negligent Infliction of Emotional Distress and Negligence, respectively:
AltaMed asserts that these causes of action fail because it cannot be held vicariously liable for an alleged sexual assault by its employee. [A]n employer is vicariously liable for the torts of its employees committed within the scope of the employment. (
Lisa M. v. Henry Mayo Newhall Memorial Hospital
(1995) 12 Cal.4th 291, 296.) However, [a]n
employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee's work. (
Id.
at 297).
The court construes Plaintiffs eighth and ninth causes of action as sounding in direct negligence, rather than vicarious liability. Further, while AltaMed contends that these causes of action are surplusage, this argument was raised for the first time in the reply; as such, it is disregarded. The motion is denied in this regard.
2.
Motion to Strike
AltaMed moves the court for an order striking out the following language from Plaintiffs complaint:
1.
Page 12, paragraph 68, lines 6-12;
2.
Page 13, paragraph 79, lines 9-15;
3.
Page 16, paragraph 102, lines 18-24;
4.
Page 17, paragraph 7, line 13;
5.
Page 17, paragraph 9, line 15;
6.
Page 17, paragraph 10, line 16. AltaMeds request is denied as moot. All of the allegations AltaMed seeks to have stricken pertain to the fifth, sixth and tenth causes of action, which Plaintiff has agreed to dismiss.
Ruling
Thompson, Harry Fayne III vs. Rose, Steven Leon et al
Jul 22, 2024 |
S-CV-0052451
S-CV-0052451 Thompson, Harry Fayne III vs. Rose, Steven Leon et al
No appearance required. CMC is continued to 10/14/24 at 2pm in Dept. 6.
Complaint is not at issue - Need responsive pleading, default or dismissal as to
Defendant(s): Grossman, Marilyn Joy
Additionally, no proof of service has been filed as to Defendant(s): Rose, Steven
Leon
Ruling
TODD BERTRANG, ET AL. VS IVORY HOLDINGS, LLC, A LIMITED LIABILITY COMPANY, ET AL.
Jul 09, 2024 |
21STCV42736
Case Number:
21STCV42736
Hearing Date:
July 9, 2024
Dept:
S25 Procedural Background Plaintiffs, Todd Bertrang (Bertrang) and Ophie Beltran (Beltran) (collectively, Plaintiffs) sued Defendants, Lido Sailing Club, Inc. (Lido), Ivory Holdings, LLC (Ivory), and Scott Vollero (Vollero) based on injuries Plaintiffs allege they sustained from Bertrangs exposure to hazardous chemicals. Plaintiffs filed their original complaint on November 18, 2021, and filed a First Amended Complaint (FAC) on May 4, 2022. Notably, Plaintiffs did not serve any party prior to filing their FAC, and no party responded to the original complaint. On September 8, 2022, the Court sustained Lido Sailing Club, LLCs demurrer to the FAC with leave to amend. (September 8, 2022 Minute Order.) On September 30, 2022, Plaintiffs filed their Second Amended Complaint (SAC). On October 5, 2022, Lido filed a demurrer to the SAC. Shortly thereafter, the personal injury hub court found the case complicated and transferred it to Long Beach for all further proceedings. On January 12, 2023, Lido re-filed its demurrer to the SAC in Department S27. On June 27, 2023, the Court continued the hearing on the demurrer, finding the parties had not adequately met and conferred prior to filing their papers. On July 27, 2023, the Court sustained the demurrer with leave to amend. On September 20, 2023, rather than amending the SAC, Plaintiffs dismissed Lido from the case. On December 21, 2023, Defendants Ivory Holdings and Vollero filed a demurrer with the motion to strike portions of the SAC. On January 23, 2024, the Court sustained the demurrer with leave to 20 days amend as to the NIED cause of action and alter ego liability cause of action and overruled the strict liability for ultrahazardous activity cause of action, the violation of Health and Safety Code, § 25359.7, cause of action and the IIED cause of action; the Court also granted the motion to strike without leave to amend as to punitive damages and related allegations. (January 23, 2024 Minute Order.) On April 24, 2024, Plaintiffs filed a Third Amended Complaint (TAC) more than two months after the Courts January 23 order. Meet and Confer Defendant Volleros counsel states that he sent a meet and confer letter to Plaintiffs counsel on May 17, 2024 detailing issues with the TAC and his availability for a telephonic meet and confer at least 5 days prior to filing the instant motions. (Rasmussen Decl.1, ¶ 5, Exh. B.) Defendant Volleros counsel states that Plaintiffs counsel did not respond to the meet and confer attempt. (Id., at ¶ 6.) In opposition, Plaintiffs counsel argues Defendant Volleros counsel failed to meet and confer because the issues were not discussed in person or by telephone as required under Code Civ. Proc., §§ 430.41, 435.5. Notwithstanding the parties conflicting ideas of meet and confer, it is very likely an informal attempt to resolve the matter would have been unsuccessful. Analysis 1. Delay in Filing of Third Amended Complaint Code Civ. Proc., § 472b, states that: [w] hen a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order, unless the notice is waived in open court, and the waiver entered in the minutes. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2024) ¶ 7:145; Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330.) After expiration of the time in which a pleading can be amended as a matter of course, the pleading can only be amended by obtaining the permission of the court. (Leader v. Health Indus. of Am., Inc. (2001) 89 Cal. App. 4th 603, 613.) While a court has discretion to require a noticed motion before permitting a plaintiff to file an amended complaint late, a court also has the discretion to accept a filing without a noticed motion. (Harlan v. Dep't of Transportation (2005) 132 Cal. App. 4th 868, 873.) The Court exercises its discretion and accepts Plaintiffs untimely filed Third Amended Complaint without a noticed motion. 2. Second Amended Complaint Holding (Alter Ego) On January 23, 2024, Judge Mark Kim sustained Defendant Volleros Demurrer to the Second Amended Complaint with leave to amend. Judge Kim ruled: All claims against Volero are plead on an alter ego theory. Plaintiffs alter ego allegations are found at ¶6 of the SAC, and merely allege that each defendant was acting as the alter ego of each other defendant. Relying on Rutherford Holdings, LLC v. Playa del Rey (2014) 223 Cal.App. 221, 236, Judge Kim held: Plaintiffs herein failed to allege any of the ultimate facts showing alter ego liability. They failed to allege unity of interest, domination and control, inadequate capitalization, etc. Voleros demurrer is therefore sustained with leave to amend. Plaintiffs must allege ultimate facts showing imposition of liability against Volero would be proper. (See January 23, 2024 Minute Order, Legal Standard on Demurrer, Alter Ego Liability, 3(h)). 3. Demurrer to the Third Amended Complaint (Alter Ego) A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing partys pleading. It is error for the trial court to sustain a demurrer if the plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the court to sustain a demurrer without leave to amend if the plaintiff has shown there is a reasonable possibility a defect can be cured by amendment. California Logistics, Inc. v. State of California (2008) 161 Cal. App. 4th 242, 247. The burden is on the complainant to show in what manner and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Plaintiffs allegations of alter ego in the TAC are found at ¶ 3 and 6. These allegations are identical to the alter ego allegations found at ¶ 3 and ¶6 of the SAC. No additional facts or allegations have been added by Plaintiffs. As discussed, Judge Kim found those allegations deficient as Plaintiff failed to allege any of the ultimate facts showing alter ego liability and failed to allege unity of interest, domination and control, inadequate capitalization. (January 23, 2024 Minute Order). In sum, Plaintiffs completely failed to amend or modify their operative pleading in any manner or in compliance with Judge Kims ruling. In Plaintiffs opposition, Plaintiffs request leave to amend by suggesting three new facts, previously unknown, support the theory of alter ego between Vollero and Ivory Holdings. These facts are: (1) and (2) on August 16, 2016, two separate Deeds of Trust were recorded against the subject premises with Vollero as the Beneficiary and (3) Vollero, as an individual, performed the alleged remediation of the toxic chemicals which are alleged to have harmed Plaintiffs. Assuming the new facts found in Plaintiffs Opposition are true, Plaintiffs have not met their burden demonstrating how or in what manner these new allegations support of finding that a reasonable possibility exist for Plaintiffs to cure the defects and successfully pled a theory of alter ego. (Reeder v. Specialized Loan Servicing LLC (2020) 52 Cal.App.5th 795, 805.) These additional facts show no connection between Vollero and Ivory Holdings. Even with the inclusion of those three allegations, Plaintiffs operative pleading would fail to allege any of the ultimate facts showing an alter ego theory as set forth in Rutherford (e.g. allegations of unity of interest, domination and control, inadequate capitalization). 4. Ruling The Court sustains Defendant Volleros Demurrer without leave to amend. Defendant Volleros motion to strike is now moot.
Ruling
Luis Kutz, et al vs Jennifer Fribourgh, et al
Jul 11, 2024 |
23CV01711
23CV01711
KUTZ et al. v. FRIBOURGH et al.
(UNOPPOSED) PLAINTIFFS’ MOTIONS TO BE RELIEVED
The unopposed motions are denied without prejudice. Counsel must refile to reflect
correct upcoming hearing dates in the declarations and proposed orders.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Page 1 of 1
Ruling
Dryden, Donna vs Tri Counties Bank
Jul 10, 2024 |
23CV03115
23CV03115 Dryden, Donna et al. v. Tri Counties Bank
EVENT: Plaintiffs’ Motion to Consolidate and Appoint Interim Class Counsel
Plaintiffs’ Motion to Consolidate and Appoint Interim Class Counsel is GRANTED. Defendant
shall file a responsive pleading within 60 days of the date of this order. The Court will sign the
proposed order with the noted modification.
Document
Patrick Strickland v. W.I.P. Club, Inc., Barry Mullineaux, Collective Hardware, Inc., John Bakhishi, Lina Kay, Hirukuni Sai, John C. Best, Frank Porco, Merlin Bobb-Willis, 150 Rft Varick Corp., 150 Rft Varick Basement Llc, W. & M. Operating, L.L.C., Aubrey Graham Drake a/k/a DRAKE, Allstar Security & Consulting, Inc., Christopher Maurice Brown a/k/a CHRIS BROWN
Apr 08, 2013 |
Anil Singh
|
Tort |
Tort |
153185/2013
Document
Melania Rodriguez and RYAN LUNT, as Parents and Natural Guardians of Z.L, Melania Rodriguez, Ryan Lunt Individually v. Nicholas James Buffin M.D., Valerie Lewis-Morris M.D., Emily Schmidt-Beuchat M.D., Hope S. Langer M.D., Youyin Choy M.D., Lois Brustman M.D., Susan Rothenberg M.D., Helaine Worrell M.D., Mount Sinai West, West Care Medical, P.C.,, Faculty Practice Associates-Mount Sinai Hospital,, Midtown Ob/Gyn
Mar 15, 2021 |
John J. Kelley
|
Torts - Medical, Dental, or Podiatrist Malpractice |
Torts - Medical, Dental, or Podiatrist Malpractice |
805086/2021
Preview
FILED: NEW YORK COUNTY CLERK 01/04/2022 11:27 AM INDEX NO. 162502/2015 NYSCEF DOC. NO. 328 RECEIVED NYSCEF: 01/04/2022 Page 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - - - - - - - - - - - - - X IN RE: 260 MADISON AVENUE HVAC UNIT COLLAPSE CASE MANAGEMENT Index No. 783000/2018 - - - - - - - - - - - - - X VIDEOCONFERENCED DEPOSITION of the Defendant, MARINE & INDUSTRIAL TESTING SOLUTIONS, by a Witness, THOMAS FITZGERALD BENTON, taken by STEVEN H. KAPLAN, in the above-entitled action, pursuant to Court Order, commencing December 10, 2021 at 10:07 a.m., taken before ARIELLA BOROCHOFF, a Shorthand Reporter and Notary Public within and for the State of New York. Magna Legal Services (866)624-6221 www.MagnaLS.com FILED: NEW YORK COUNTY CLERK 01/04/2022 11:27 AM INDEX NO. 162502/2015 NYSCEF DOC. NO. 328 RECEIVED NYSCEF: 01/04/2022 Page 2 Page 3 1 1 2 A P P E A R A N C E S: 2 (C O N T I N U E D 3 FINAZZO COSSOLINI O'LEARY MEOLA & A P P E A R A N C E S) HAGER, LLC 3 4 Attorneys for Plaintiff GORDON REES SCULLY MANSUKHANI, LLP 260-261 Madison Avenue, LLC 4 Attorneys for Defendant 5 5 Penn Plaza 500 Mamaroneck Avenue New York, New York 10001 5 Suite 503 6 BY: BRENDAN M. WENGERTER, ESQ. Harrison, New York 10528 brendan.wengerter@finazzolaw.com 6 BY: MICHAEL J. SCHACHER, ESQ. 7 mschacher@grsm.com 8 CASCONE & KLUEPFEL LLP 7 Attorneys for Defendant 8 9 MARINE & INDUSTRIAL TESTING SARETSKY KATZ & DRANOFF, LLP SOLUTIONS 9 Attorneys for Plaintiff on 10 1399 Franklin Avenue counterclaim Suite 302 10 GREG & PRISCILLA WELCH 11 Garden City, New York 11530 475 Park Ave South BY: DAVID F. TAVELLA, ESQ. 11 Suite 26 12 dtavella@cklaw.com 13 New York, New York 10016 PILLINGER, MILLER, TARALLO, LLP 12 BY: MATTHEW HUGHES, ESQ. 14 Attorneys for Fourth Third-Party 13 Defendant 14 WILLIAMS & CONNOLLY, LLP 15 PENGUIN AIR CONDITIONING CORP. Attorneys for Third Third-Party 232 Madison Avenue 15 Defendant and Fourth Third-Party 16 Suite 909 Defendant New York, New York 10016 16 JOHNSON CONTROLS, INC. 17 BY: STEVEN H. KAPLAN, ESQ. 725 12th Street NW skaplan@pmtlawfirm.com 17 Washington, DC 20005 18 BY: AMY B. MCKINLAY, ESQ. 19 LITCHFIELD CAVO, LLP 18 amckinlay@wc.com Attorneys for Defendant 19 20 260-261 MADISON AVENUE, LLC, JAY H. TANENBAUM LAW FIRM SFM CONSTRUCTION, LLC, and ASRR 20 Attorneys for Plaintiff on 21 CONSTRUCTION, LLC counterclaim 420 Lexington Avenue 21 GREG & PRISCILLA WELCH 22 Suite 2104 14 Wall Street New York, New York 10170 22 New York, New York 10005 23 BY: MORGAN E. MUELLER, ESQ. BY: MARC D. CITRIN, ESQ., of Counsel muellerm@litchfieldcavo.com 23 24 24 25 (A P P E A R A N C E S 25 Page 4 Page 5 1 1 2 STIPULATION 2 extent permitted by CPLR Rule 3115 or by 3 IT IS STIPULATED AND AGREED by and 3 this rule, during the course of the 4 between the attorneys for the respective 4 examination persons in attendance shall 5 parties herein, and in compliance with 5 not make statements or comments that 6 Rule 221 of the Uniform Rules for the 6 interfere with the questioning. 7 Trial Courts: 7 THAT a deponent shall answer all 8 THAT the parties recognize the provision 8 questions at a deposition, except (i) to 9 of Rule 3115 subdivisions (b), (c) 9 preserve a privilege or right of 10 and/or (d). All objections made at a 10 confidentiality, (ii) to enforce a 11 deposition shall be noted by the officer 11 limitation set forth in an order of a 12 before whom the deposition is taken, and 12 court, or (iii) when the question is 13 the answer shall be given and the 13 plainly improper and would, if answered, 14 deposition shall proceed subject to the 14 cause significant prejudice to any 15 objections and to the right of a person 15 person. An attorney shall not direct a 16 to apply for appropriate relief pursuant 16 deponent not to answer except as 17 to Article 31 of the CPLR; 17 provided in CPLR Rule 3115 or this 18 THAT every objection raised during a 18 subdivision. Any refusal to answer or 19 deposition shall be stated succinctly 19 direction not to answer shall be 20 and framed so as not to suggest an 20 accompanied by a succinct and clear 21 answer to the deponent and, at the 21 statement on the basis therefore. If 22 request of the questioning attorney, 22 the deponent does not answer a question, 23 shall include a clear statement as to 23 the examining party shall have the right 24 any defect in form or other basis of 24 to complete the remainder of the 25 error or irregularity. Except to the 25 deposition. 2 (Pages 2 to 5) FILED: NEW YORK COUNTY CLERK 01/04/2022 11:27 AM INDEX NO. 162502/2015 NYSCEF DOC. NO. 328 RECEIVED NYSCEF: 01/04/2022 Page 6 Page 7 1 1 2 THAT an attorney shall not interrupt the 2 is taken, shall not be deemed a waiver 3 deposition for the purpose of 3 of the rights provided by Rules 3116 and 4 communicating with the deponent unless 4 3117 of the C.P.L.R, and shall be 5 all parties consent or the communication 5 controlled thereby; and 6 is made for the purpose of determining 6 THAT the certification and filing of the 7 whether the question should not be 7 original of this examination are hereby 8 answered on the grounds set forth in 8 waived; and 9 Section 221.2 of these rules, and, in 9 THAT the questioning attorney shall 10 such event, the reason for the 10 provide counsel for the witness examined 11 communication shall be stated for the 11 herein with a copy of this examination 12 record succinctly and clearly. 12 at no charge. 13 THAT the failure to object to any 13 14 question or to move to strike any 14 15 testimony at this examination shall not 15 16 be a bar or waiver to make such 16 17 objection or motion at the time of the 17 18 trial of this action, and is hereby 18 19 reserved; and 19 20 THAT this examination may be signed and 20 21 sworn to by the witness examined herein 21 22 before any Notary Public, but the 22 23 failure to do so or to return the 23 24 original of the examination to the 24 25 attorney on whose behalf the examination 25 Page 8 Page 9 1 T. BENTON 1 T. BENTON 2 MR. KAPLAN: To the effect 2 THOMAS B E N T O N, the Witness 3 that this deposition which is 3 herein, having been first duly sworn by 4 being held pursuant to Court 4 a Notary Public of the State of 5 Order is limited in scope and it 5 New York, was examined and testified as 6 is a jurisdictional deposition 6 follows: 7 only. 7 EXAMINATION 8 Therefore, once the 8 BY MR. KAPLAN: 9 jurisdictional issue is resolved 9 THE STENOGRAPHER: State 10 and should Marine & Industrial 10 your name for the record, please. 11 remain within the lawsuit, we 11 THE WITNESS: Thomas 12 reserve the right to recall this 12 Fitzgerald Benton. 13 or other appropriate witnesses 13 THE STENOGRAPHER: State 14 from Marine & Industrial to give 14 your address for the record, 15 testimony with respect to the 15 please. 16 substance of the allegations that 16 THE WITNESS: 150 Virginia 17 issue in this lawsuit. 17 Street, Mobile, Alabama 36603. 18 MR. TAVELLA: I will 18 Q. Good morning, Mr. Benton. 19 stipulate that should testimony 19 Can you hear us, Mr. Benton? 20 be needed on the liability 20 A. Yes, I can hear you. 21 aspect, Marine & Industrial will 21 Q. Okay. My recommendation would 22 produce a witness to testify. 22 be to leave the mute button off because 23 MR. KAPLAN: Okay. That's 23 you're going to be answering questions 24 fine. 24 throughout. 25 -o0o- 25 Now, the address that you just 3 (Pages 6 to 9) FILED: NEW YORK COUNTY CLERK 01/04/2022 11:27 AM INDEX NO. 162502/2015 NYSCEF DOC. NO. 328 RECEIVED NYSCEF: 01/04/2022 Page 10 Page 11 1 T. BENTON 1 T. BENTON 2 gave is the business address or one of 2 you are testing remotely, the oath that 3 the business addresses, I should say, 3 you just took is the same oath that you 4 of Marine & Industrial, and not your 4 would take if you were present in court 5 residence address; is that correct? 5 and it has the same force and effect; 6 A. Correct. 6 do you understand that? 7 MR. KAPLAN: David, can we 7 A. Yes. 8 stipulate that I won't ask the 8 Q. Now, the testimony that we are 9 witness' residence address, but 9 taking of you today is an important 10 if required for trial, Marine & 10 part of the lawsuit and it can be 11 Industrial will produce him for 11 utilized in various means either at 12 so long as he is still employed 12 trial or at -- or on motions before the 13 by the company and provide his 13 court, so it's very important that you 14 last known address, should he not 14 testify accurately; do you understand 15 be? 15 that? 16 MR. TAVELLA: Yes, so 16 A. Yes. 17 stipulated. 17 Q. Now, with that regard I'm going 18 MR. KAPLAN: Okay. 18 to be asking you a series of questions 19 Q. Sir, let me just give you some 19 that I believe to be pertinent to this 20 basic instructions concerning the 20 lawsuit and some of the other attorneys 21 deposition process before I get started 21 who are present on this remote 22 with questioning you. 22 deposition, they will also ask you 23 First off, you are under oath, 23 questions. 24 and while you are not physically 24 It's important that you listen 25 present with us or in a courthouse and 25 carefully to the question and that you Page 12 Page 13 1 T. BENTON 1 T. BENTON 2 understand what I'm asking you. At 2 Supply Company, Inc. If I use the term 3 times my questions might not be perfect 3 Marine & Industrial rather than the 4 and at times your lawyer may object and 4 full name Marine & Industrial Supply 5 I may rephrase the question, but the 5 Company, Inc., will you understand who 6 important thing is that you understand 6 I'm referring to? 7 the question. 7 A. Yes. 8 So if at any time you do not 8 Q. Okay. Now, the questions that 9 understand my question, please let me 9 I'll -- strike that. 10 know that and I will attempt to 10 We don't want you to be guessing 11 rephrase it in a manner that you do 11 when you answer questions, but you may 12 understand; do you agree to that? 12 answer questions based upon information 13 A. Yes. 13 that you obtained from other people 14 Q. So if you do answer a question 14 within the company or from your own 15 we will have to assume as will the 15 knowledge, and you may approximate. Do 16 court and the jury that you understood 16 you understand the difference between 17 the question and that the answer you 17 guessing and approximating? 18 gave was in response to the question 18 A. Yes. 19 that I asked. So it's important that 19 Q. Now, one of the peculiarities of 20 you if don't understand, you let me 20 testifying is that when we engage in 21 know; do you understand that? 21 day-to-day communications, we very 22 A. Yes. 22 often will utilize gestures, nods of 23 Q. Okay. Now, we are going to be 23 the head, things like "Mmm-hmm" or 24 asking you questions that pertain to 24 "Uh-uh" as part of our communication 25 the business of Marine & Industrial 25 process. 4 (Pages 10 to 13) FILED: NEW YORK COUNTY CLERK 01/04/2022 11:27 AM INDEX NO. 162502/2015 NYSCEF DOC. NO. 328 RECEIVED NYSCEF: 01/04/2022 Page 14 Page 15 1 T. BENTON 1 T. BENTON 2 And some of us New Yorkers are 2 Q. Didn't think so, but I always 3 notorious for this, we'll start 3 that. And have you ever been convicted 4 speaking while somebody else is still 4 of any crimes? 5 talking. All of those things have to 5 A. No. 6 be avoided in the deposition process so 6 Q. Have you ever filed for 7 it's important that you answer in words 7 bankruptcy? 8 rather than in gestures or in some 8 A. No. 9 other manner. 9 Q. Sir, what is your highest level 10 And further it's important that 10 of education that you have? 11 you let me finish speaking before you 11 A. I have a college degree. 12 begin speaking and I'll attempt to give 12 Q. From where and in what? 13 you the same courtesy; do you 13 A. University of Alabama in Human 14 understand that? 14 Environmental Sciences. 15 A. Yes. 15 Q. What year? 16 Q. Okay. Now, I just have some 16 A. 2001, approximately, 2002. 17 background questions that I always ask 17 Q. And how old are you now? 18 that shouldn't offend you that I'm 18 A. 43. 19 asking these things, it's just a matter 19 Q. Did you review any documents in 20 of routine. 20 preparation for this deposition before 21 Sir, are you currently under the 21 coming here today? 22 influence of any drugs or alcohol that 22 A. No. 23 may affect your memory or your ability 23 Q. Did you have any discussions 24 to testify accurately today? 24 with anybody other than your attorney 25 A. No. 25 about the substance of your anticipated Page 16 Page 17 1 T. BENTON 1 T. BENTON 2 testimony today? 2 deposition before? 3 A. Nope. 3 A. No. 4 Q. Oh, you're making this easy. 4 Q. Have you ever given testimony at 5 Where are you currently sitting as 5 a trial? 6 you're giving testimony? 6 A. No. 7 A. In a chair. 7 Q. Now, I understand you are the 8 Q. Thank you. I could see that. 8 President of Marine & Industrial; is 9 And where is the chair located? 9 that correct? 10 A. In my office. 10 A. Yes. 11 Q. And where is your office 11 Q. And how long have you been 12 located? 12 president? 13 A. On 50 Virginia Street. 13 A. Ten years. 14 Q. Is your office within the 14 Q. So since, approximately, 2011 or 15 offices of Marine & Industrial? 15 thereabouts? 16 A. Yes. 16 A. If your math is correct. 17 Q. Is there anybody else present 17 Q. I'm just subtracting ten from 18 within the office? 18 your 2021; does that sound about right 19 A. Nope. 19 to you? 20 Q. And will you agree to inform us 20 A. Yes. 21 should somebody else enter the office 21 Q. And during the, approximately, 22 while you're giving testimony? 22 ten years that you have been president, 23 A. Yes. 23 have your duties and responsibilities 24 Q. Now, sir, have you ever been -- 24 change in any way? 25 have you ever given testimony at a 25 A. No. 5 (Pages 14 to 17) FILED: NEW YORK COUNTY CLERK 01/04/2022 11:27 AM INDEX NO. 162502/2015 NYSCEF DOC. NO. 328 RECEIVED NYSCEF: 01/04/2022 Page 18 Page 19 1 T. BENTON 1 T. BENTON 2 Q. Could you describe what your 2 involvement in marketing? 3 duties and responsibilities as 3 A. I mean, I'm involved in the 4 President of Marine & Industrial are? 4 marketing process. 5 A. I am responsible for the 5 Q. In what ways are you involved in 6 business of Marine & Industrial supply. 6 the marketing process? 7 Q. And can you embellish a little 7 A. Through making marketing 8 bit about what that entails? 8 decisions. 9 A. That entails the basic runnings 9 Q. And I asked in addition to 10 of a business. 10 making marketing decisions, do you do 11 Q. Okay. And in terms of the 11 anything else with respect to 12 basing runnings of the business, are 12 marketing? 13 you directly involved in marketing for 13 A. Make marketing decisions. 14 the business? 14 Q. So the answer is, That's all? 15 A. We have -- yes. 15 A. I make marketing decisions. 16 Q. What specifically do you do in 16 Q. Okay. Before you became 17 terms of your direct involvement in 17 President of Marine & Industrial, did 18 marketing? 18 you have any prior job titles within 19 A. I choose the marketing company 19 the company? 20 that we use and we outsource that, 20 A. I mean, we don't really have 21 decision-making processes. 21 very many job titles, we're a small 22 Q. In addition to choosing the 22 business. 23 marketing company used for outsourcing 23 Q. When did you start working for 24 and in addition to decision-making 24 Marine & Industrial? 25 processes, do you have any other direct 25 A. 2004, '5, approximately. Page 20 Page 21 1 T. BENTON 1 T. BENTON 2 Q. What is your relationship with 2 100 percent owner of the company? 3 Leroy H. Benton, III? 3 A. Yes. 4 A. He's my father. 4 Q. Now, between the years of 2004 5 Q. Is he still actively involved in 5 and 2005 and the time that you became 6 the company? 6 president in, approximately, 2010 or 7 A. Nope. 7 2011, what were your responsibilities 8 Q. When did he stop being actively 8 with the company? 9 involved? 9 A. Sweeping the floors. 10 A. 2010, approximately. 10 Q. Did you jump from sweeping 11 Q. Did the time that he stopped 11 floors to being president or were there 12 being actively involved coincide with 12 some other responsibilities in between 13 the time that you became president? 13 that? 14 A. Approximately. 14 A. Made some deliveries. 15 Q. And is the company privately 15 Q. Would it be an accurate 16 owned? 16 statement, sir, that you went from 17 A. Yes. 17 sweeping floors and making some 18 Q. And do you have an ownership 18 deliveries to becoming president of the 19 interest in the company? 19 company and in that capacity making 20 A. Yes. 20 decisions on behalf of the company 21 Q. Does anybody else have an 21 without any further decision -- or 22 ownership interest in the company? 22 without any prior decision-making 23 A. No. 23 involvement? 24 Q. So would it be an accurate 24 MR. TAVELLA: Note my 25 statement that you are currently 25 objection. You can answer. 6 (Pages 18 to 21) FILED: NEW YORK COUNTY CLERK 01/04/2022 11:27 AM INDEX NO. 162502/2015 NYSCEF DOC. NO. 328 RECEIVED NYSCEF: 01/04/2022 Page 22 Page 23 1 T. BENTON 1 T. BENTON 2 MR. KAPLAN: You could 2 Marine & Industrial who is most 3 object, David, but we could be 3 knowledgeable about the company's 4 here until the end of the day if 4 effort to market its products and 5 the Witness isn't a little bit 5 services in the State of New York 6 more forthcoming about answering 6 during the period of 2008 through the 7 questions -- 7 present? 8 A. Sweeping floors is an important 8 MR. TAVELLA: Objection. 9 part of the business. 9 You're assuming there is an 10 Q. I'm sure it must be and making 10 effort to market in New York. 11 deliveries is as well. I'm asking you 11 You can answer. You can answer 12 between 2004 and 2005 when you started 12 the question. 13 with the company and the date that you 13 THE WITNESS: Answer the 14 became president of the company, 14 question? 15 whether you did anything other than 15 MR. TAVELLA: Yeah. 16 sweep floors and make a few deliveries. 16 A. Yes. 17 A. With this particular business, 17 MR. KAPLAN: David, your 18 that's what I did. 18 voice is coming in very low on my 19 Q. And that is all that you did for 19 end. I don't know if other 20 Marine & Industrial during that period 20 people are encountering that. 21 before you became president? 21 --- 22 A. Yes. 22 (Whereupon, an 23 Q. I'm sorry, was that yes? 23 off-the-record discussion was 24 A. Yes. 24 held at this time.) 25 Q. Sir, are you the person with 25 --- Page 24 Page 25 1 T. BENTON 1 T. BENTON 2 Q. Now, sir, is Marine & Industrial 2 office at that location? 3 an Alabama corporation? 3 A. Since 1975. 4 A. Yes. 4 Q. Now, I understand that you also 5 Q. And it was founded by your 5 have -- when I say "you" I'm referring 6 father, I understand? 6 to Marine & Industrial, have a sales 7 A. Yes. 7 office at 37108 Easley Melancon Road, 8 Q. What is incorporated in or about 8 Prairieville, Louisiana; is that 9 the year 1975? 9 correct? 10 A. Yes. 10 A. Yes. 11 Q. Now, are there currently any 11 Q. And I understand from your 12 other officers of the company in 12 website that you had that address from 13 addition to yourself as president? 13 the year 2007; is that correct? 14 A. No. 14 A. Approximately. 15 Q. There's no secretary, vice 15 Q. Okay. Are those the only two 16 president or anything like that? 16 locations -- or the only two states, I 17 A. No. 17 should say, in which Marine & 18 Q. And the main office is located 18 Industrial currently has any offices? 19 at 150 Virginia Street, Mobile, 19 A. Yes. 20 Alabama? 20 Q. Are they the only states in 21 A. Yes. 21 which Marine & Industrial has 22 Q. And that's currently where you 22 historically had any offices? 23 are, you indicated, correct? 23 A. Yes. 24 A. Yes. 24 Q. How would you categorize -- what 25 Q. How long has the company had an 25 would you categorize the business of 7 (Pages 22 to 25) FILED: NEW YORK COUNTY CLERK 01/04/2022 11:27 AM INDEX NO. 162502/2015 NYSCEF DOC. NO. 328 RECEIVED NYSCEF: 01/04/2022 Page 26 Page 27 1 T. BENTON 1 T. BENTON 2 Marine & Industrial as? 2 Q. And is that historically the 3 MR. TAVELLA: Objection to 3 case in -- and not just today? 4 form. You can answer. 4 A. Yes. 5 THE WITNESS: I'm sorry, 5 Q. And you used the word 6 David, you were a little bit 6 "fabricate" in connection with your 7 mumbled. 7 below-the-hook products; is there a 8 MR. TAVELLA: You can answer 8 difference in your mind between the 9 the question. 9 word "fabricate" and the word 10 THE WITNESS: Answer the 10 "manufacture"? 11 question? 11 A. Yes. 12 MR. TAVELLA: Yeah. 12 Q. Could you describe that 13 A. We fabricate below-the-hook 13 difference to me? 14 lifting devices. 14 A. Manufactures, in my opinion is 15 Q. Now, your website dates that you 15 when you take a raw -- you take raw 16 also sell products from other companies 16 products and you blend them into 17 that you refer to as vendor partners; 17 something else. When you fabricate 18 is that so? 18 something, you take pre-engineered, 19 A. Yes. 19 other people's products and you make 20 Q. So would it be an accurate 20 them to -- you combine them together, 21 statement that Marine & Industrial 21 you don't change any of the integrities 22 markets products that it fabricates on 22 of the materials, you just piece them 23 its on as well as products that are 23 together to a specific length or width 24 manufactured by others? 24 or, you know, a customer's desired 25 A. Yes. 25 speck, but you're not manufacturing -- Page 28 Page 29 1 T. BENTON 1 T. BENTON 2 you're not changing the overall product 2 A. It's who you call when you have 3 into a new product. You know, 3 to pick something up. It's the 4 fabrication is -- yeah. 4 industry that lifts products and 5 Q. Okay. Thank you for that. And 5 materials. 6 without necessarily agreeing or 6 Q. Are we referring to the use of 7 disagreeing with you concerning the 7 cranes, in particular, and derricks and 8 distinction I'll use the word 8 things of that nature? 9 "fabricate" or "fabrication" because 9 A. Any kind of device that has to 10 that's the word you're comfortable 10 be moved, yes. 11 with; is that understood? 11 Q. And when you say, Offshore 12 A. Yes. 12 solutions, what does that refer to? 13 Q. Now, the website from Marine & 13 A. Our business is in the oil and 14 Industrial states that the company has 14 gas business as well, offshore 15 -- and I'm quoting, Has provided the 15 platforms. 16 lifting and rigging industry premium 16 Q. Are these offshore platforms 17 brand products and first class customer 17 within the territorial waters of the 18 service since 1975. And is the Gulf 18 United States or elsewhere? 19 Coast regions -- I'm quoting again, Top 19 A. Yes, they're in the United 20 choice for rigging and offshore 20 States, specifically, the Gulf of 21 solutions. Are you familiar with that 21 Mexico. 22 representation from the website? 22 Q. And when you say "the Gulf of 23 A. Yes. 23 Mexico," are you referring to the 24 Q. What is your understanding of 24 territorial waters of those states that 25 the term lifting and rigging industry? 25 adjoin the Gulf of Mexico? 8 (Pages 26 to 29) FILED: NEW YORK COUNTY CLERK 01/04/2022 11:27 AM INDEX NO. 162502/2015 NYSCEF DOC. NO. 328