On July 14, 2018 a
Letter,Correspondence
was filed
involving a dispute between
Ellyn Berk,
Pamela Goldstein,
Paul Benjamin,
Tony Berk,
and
Houlihan Lawrence Inc.,
for Commercial Division
in the District Court of Westchester County.
Preview
DELBELLO DONNELLAN WEINGARTEN
WISE & WIEDERKEHR, LLP
Alfred E. Donnellan Connecticut Office
COUNSELLORS AT LAW 1111 SUMMER STREET
Partner STAMFORD, CT 06905
aed@ddw-law.com THE GATEWAY BUILDING (203) 298-0000
ONE NORTH LEXINGTON AVENUE
WHITE PLAINS, NEW YORK 10601
(914) 681-0200
FACSIMILE (914) 684-0288
November 29, 2021
VIA NYSCEF
Hon. Linda S. Jamieson
Westchester County Supreme Court
111 Dr. Martin Luther King, Jr. Blvd.
White Plains, New York 10601
Re: Goldstein, et al. v. Houlihan Lawrence, Inc.
Westchester County Supreme Court Index No. 60767/2018
Dear Justice Jamieson:
We write to the Court, on behalf of defendant Houlihan Lawrence, Inc. (Houlihan), to
request a pre-motion conference to seek authorization to file a Cross-Motion to Strike the
Affidavit and Testimony of Plaintiffs’ Class Certification Expert, Thomas F. Cusack. Mr.
Cusack’s Affidavit and Appendix are located at NYSCEF 694 and 695, and his deposition
occurred on November 18, 2021. Houlihan proposes to file its Cross-Motion contemporaneously
with its Opposition to Class Certification, on Monday, December 6, 2021.
Mr. Cusack admitted that his assigned duty was to “find out whether or not what
Houlihan/Lawrence was doing was in compliance with the law of agency and the disclosure
obligations.” In doing so, he signed an affidavit offering legal opinions. “Expert opinion as to a
legal conclusion is impermissible.” Episcopal Diocese of Long Island v. St. Matthias
Nondenominational Ministries, Inc., 157 A.D.3d 769, 771 [2d Dept 2018]; see Marquart v.
Yeshiva Machezikel Torah D’Chasidel Belz, 53 A.D.2d 688, 689 [2d Dept 1976]) (“[T]he trial
court erred in allowing the expert witness to usurp its function as the sole determiner of the
law.”).
Mr. Cusack’s Affidavit also contains approximately twenty-five (25) pages of summary
of Houlihan’s emails and business records. This summary contains inflammatory language that
may not even be appropriate for a closing argument. 1 The “guiding principle” on the use of
experts “is that expert opinion is proper when it would help to clarify an issue calling for
professional or technical knowledge, possessed by the expert and beyond the ken of the typical
1
See, e.g., Cusack Aff. (NYSCEF-694) at 14 ¶28 (“woefully unprepared”), 18 ¶38 (“self-serving sales pitch”), 24
¶51 (“blatant example of self-dealing”), 33 ¶68 (“silver-tongued, self-serving gloss-over”), id. (“might use to dupe
consumers”), 34 ¶71 (“shocking disregard of its fiduciary duties”).
1618312.doc
31000113-000
HON. LINDA S. JAMIESON
NOVEMBER 29, 2021
PAGE TWO
______________
juror.” De Long v. Cty. of Erie, 60 N.Y.2d 296, 307 (1983). Where an expert opines on subject
matter “not beyond the ken of the typical jury,” his opinions are “not necessary.” Vaglica v.
Homeyer, 30 A.D.3d 587, 588–89 (2d Dept. 2006). The documents summarized by Cusack do
not require any specialized knowledge to understand. Separately, the twenty-five (25) page
summary is nothing more than an argument or “factual” narrative from Plaintiffs’ counsel.
Finally, Plaintiffs’ refusal to allow expert discovery also supports striking Cusack’s
affidavit and testimony. Plaintiffs: (1) unilaterally terminated the deposition of Mr. Cusack after
three hours and five minutes, (2) flatly refused all document discovery related to Cusack, and (3)
failed to provide Cusack with complete record materials.
We respectfully request a pre-motion conference this week. We are prepared to file the
Cross-Motion to Strike on Monday.
Sincerely,
/s/ Alfred E. Donnellan
Alfred E. Donnellan
cc: All counsel by NYSCEF
1618312.doc
Document Filed Date
November 29, 2021
Case Filing Date
July 14, 2018
Category
Commercial Division
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Preview
DELBELLO DONNELLAN WEINGARTEN WISE & WIEDERKEHR, LLP Alfred E. Donnellan Connecticut Office COUNSELLORS AT LAW 1111 SUMMER STREET Partner STAMFORD, CT 06905 aed@ddw-law.com THE GATEWAY BUILDING (203) 298-0000 ONE NORTH LEXINGTON AVENUE WHITE PLAINS, NEW YORK 10601 (914) 681-0200 FACSIMILE (914) 684-0288 November 29, 2021 VIA NYSCEF Hon. Linda S. Jamieson Westchester County Supreme Court 111 Dr. Martin Luther King, Jr. Blvd. White Plains, New York 10601 Re: Goldstein, et al. v. Houlihan Lawrence, Inc. Westchester County Supreme Court Index No. 60767/2018 Dear Justice Jamieson: We write to the Court, on behalf of defendant Houlihan Lawrence, Inc. (Houlihan), to request a pre-motion conference to seek authorization to file a Cross-Motion to Strike the Affidavit and Testimony of Plaintiffs’ Class Certification Expert, Thomas F. Cusack. Mr. Cusack’s Affidavit and Appendix are located at NYSCEF 694 and 695, and his deposition occurred on November 18, 2021. Houlihan proposes to file its Cross-Motion contemporaneously with its Opposition to Class Certification, on Monday, December 6, 2021. Mr. Cusack admitted that his assigned duty was to “find out whether or not what Houlihan/Lawrence was doing was in compliance with the law of agency and the disclosure obligations.” In doing so, he signed an affidavit offering legal opinions. “Expert opinion as to a legal conclusion is impermissible.” Episcopal Diocese of Long Island v. St. Matthias Nondenominational Ministries, Inc., 157 A.D.3d 769, 771 [2d Dept 2018]; see Marquart v. Yeshiva Machezikel Torah D’Chasidel Belz, 53 A.D.2d 688, 689 [2d Dept 1976]) (“[T]he trial court erred in allowing the expert witness to usurp its function as the sole determiner of the law.”). Mr. Cusack’s Affidavit also contains approximately twenty-five (25) pages of summary of Houlihan’s emails and business records. This summary contains inflammatory language that may not even be appropriate for a closing argument. 1 The “guiding principle” on the use of experts “is that expert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical 1 See, e.g., Cusack Aff. (NYSCEF-694) at 14 ¶28 (“woefully unprepared”), 18 ¶38 (“self-serving sales pitch”), 24 ¶51 (“blatant example of self-dealing”), 33 ¶68 (“silver-tongued, self-serving gloss-over”), id. (“might use to dupe consumers”), 34 ¶71 (“shocking disregard of its fiduciary duties”). 1618312.doc 31000113-000 HON. LINDA S. JAMIESON NOVEMBER 29, 2021 PAGE TWO ______________ juror.” De Long v. Cty. of Erie, 60 N.Y.2d 296, 307 (1983). Where an expert opines on subject matter “not beyond the ken of the typical jury,” his opinions are “not necessary.” Vaglica v. Homeyer, 30 A.D.3d 587, 588–89 (2d Dept. 2006). The documents summarized by Cusack do not require any specialized knowledge to understand. Separately, the twenty-five (25) page summary is nothing more than an argument or “factual” narrative from Plaintiffs’ counsel. Finally, Plaintiffs’ refusal to allow expert discovery also supports striking Cusack’s affidavit and testimony. Plaintiffs: (1) unilaterally terminated the deposition of Mr. Cusack after three hours and five minutes, (2) flatly refused all document discovery related to Cusack, and (3) failed to provide Cusack with complete record materials. We respectfully request a pre-motion conference this week. We are prepared to file the Cross-Motion to Strike on Monday. Sincerely, /s/ Alfred E. Donnellan Alfred E. Donnellan cc: All counsel by NYSCEF 1618312.doc