Preview
FILED: WESTCHESTER COUNTY CLERK 01/14/2022 04:04 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1070 RECEIVED NYSCEF: 05/19/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
PAMELA GOLDSTEIN, )
ELLYN & TONY BERK as Administrators )
of the Estate of Winifred Berk, and PAUL )
BENJAMIN, on behalf of themselves and ) MEMORANDUM OF LAW
all others similarly situated, )
) Index No. 60767/2018
Plaintiffs, ) Hon. Linda S. Jamieson
)
vs. )
) CONFIDENTIAL
HOULIHAN LAWRENCE INC., )
)
Defendant. )
)
HOULIHAN LAWRENCE’S
REPLY IN SUPPORT OF ITS CROSS MOTION TO STRIKE
AFFIDAVIT AND TESTIMONY OF THOMAS CUSACK
January 14, 2022
Robert D. MacGill (pro hac vice) Alfred E. Donnellan
Matthew T. Ciulla (pro hac vice) Nelida Lara
MACGILL PC DELBELLO DONNELLAN WEINGARTEN
156 E. Market St., Suite 1200 WISE & WIEDERKEHR LLP
Indianapolis, IN 46204 One North Lexington Ave, 11th Floor
(317) 721-1253 White Plains, NY 10601
(914) 681-0200
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TABLE OF CONTENTS
TABLE OF AUTHORITIES…………………………………………………………………….ii
I. Cusack’s Affidavit Should Be Stricken Because It Invades
the Exclusive Role of the Court to Decide Legal Questions………………...1
II. Cusack’s Affidavit Should be Stricken as an Improper
Factual Narrative. ………………………………………………………………3
III. Cusack’s Affidavit Should Be Stricken as Unhelpful………………………..4
CONCLUSION AND RELIEF SOUGHT ……………………………………………………..5
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TABLE OF AUTHORITIES
Case(s): Page(s):
Danley v. Bayer,
169 F. Supp. 3d 396, 478 (S.D.N.Y. 2016)…………………………….…………………4
De Long v. Cty. of Erie,
60 N.Y.2d 296, 307 (1983) ……………………………………………….………………4
Episcopal Diocese of Long Island v. St. Matthias Nondenominational Ministries, Inc.,
69 N.Y.S.3d 664, 666 (2d Dept. 2018)……………………………………………………1
Highland Capital Mgmt. v. Schneider,
379 F. Supp. 2d 461, 468-69 (S.D.N.Y. 2005)…………………………………………3, 4
Marquart v. Yeshiva Machezikel Torah D’Chasidel Belz,
385 N.Y.S.2d 319, 321 (2d Dept. 1976)…………………………………………..……1, 3
Miriam Osborn Mem. Home Assn. v. Assessor of Rye,
2005 N.Y. Misc. LEXIS 617, at *5-8 (Westchester Cty. 2005)…………………..………1
Russo v. Feder, Kaszovitiz, Isaacson, Weber, Skala & Bass, LLP,
301 A.D.2d 63, 69 (1st Dept. 2002)………………………………………………….……1
Taylor v. Evans,
1997 U.S. Dist. LEXIS 3907, at *3-4 (S.D.N.Y. 1997)…………………………...……3, 4
Vaglica v. Homeyer,
30 A.D.3d 587, 589 (2d Dept. 2006).………………………………………………..……4
Statutes:
Real Property Law 443……………………………………………………………………………2
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Cusack has offered impermissible legal opinions, and Plaintiffs now claim that
he may do so “independent of any citations or authorities.” Cusack may not interpret
the law and invade the exclusive province of this Court. Plaintiffs admit that Cusack’s
Affidavit “only confirms” what “the Court can reasonably infer from voluminous other
evidence.” Cusack may not offer this Court a mere regurgitation of the record. And
Plaintiffs confirm that the Court can and should adjudicate the class certification motion
without reference to Cusack. Therefore, he is unhelpful.
For these reasons, Cusack’s Affidavit should be stricken.
I. Cusack’s Affidavit Should Be Stricken Because It Invades the Exclusive
Role of the Court to Decide Legal Questions.
An “expert may not be utilized to offer opinion as to the legal standards which
he believes should have governed a party's conduct,” and expert witnesses “should not
offer opinion as to the legal obligations of parties.” Russo v. Feder, Kaszovitiz, Isaacson,
Weber, Skala & Bass, LLP, 301 A.D.2d 63, 69 (1st Dept. 2002) (alteration adopted and
citation omitted); see Episcopal Diocese of Long Island v. St. Matthias Nondenominational
Ministries, Inc., 69 N.Y.S.3d 664, 666 (2d Dept. 2018) (“Expert opinion as to a legal
conclusion is impermissible.”); Marquart v. Yeshiva Machezikel Torah D’Chasidel Belz, 385
N.Y.S.2d 319, 321 (2d Dept. 1976) (“[T]he trial court erred in allowing the expert witness
to usurp its function as the sole determiner of the law.”); Miriam Osborn Mem. Home
Assn. v. Assessor of Rye, 2005 N.Y. Misc. LEXIS 617, at *5-8 (Westchester Cty. 2005)
(collecting cases) (“Expert opinions which embody legal conclusions interfere with the
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Court's duty to interpret statutes and reach legal conclusions….[I]t is axiomatic that an
expert is not permitted to provide legal opinions, legal conclusions, or interpret legal
terms; those roles fall solely within the province of the court.”).
Cusack attempts to instruct the Court how to interpret Real Property Law 443,
invading its province. Cusack repeatedly confirmed that his opinions are interpretations
of the “law of agency.” HLEx.60 at 86:14-17
id. at 72:17-19
); id. at
86:3-6 .”); id. at
163:13-16
; see also, e.g., Cusack Aff. at 34 ¶ 71 (concluding
sentence:
id. at 8 ¶ 17 (stating
).
In doing so, he failed to even review the law, a fact that Plaintiffs gloss over.
Nothing can change Cusack’s admission
HLEx.60 at
86:18-20
2
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id. at 74:6 (“[
Plaintiffs embrace this failure, claiming that Cusack is qualified to render his legal
opinions “independent of any citations or authorities” by referencing a medical
malpractice case. Strike Opp. at 7-8.
This Court has already demonstrated that it will interpret Real Property Law 443.
In its Opinion on Motion to Dismiss, the Court evaluated Plaintiffs’ argument that
Houlihan Lawrence did not “fully disclose the risks, downsides, and options of dual
agency ‘at the onset of discussions concerning agency.’” NYSCEF 370 at 8. The Court’s
analysis in “interpreting the statute” was “guided by the well-traveled road of statutory
interpretation.” Id. at 9. The Court should not now allow Cusack to “usurp its function
as the sole determiner of the law.” Marquart, 385 N.Y.S.2d at 321.
II. Cusack’s Affidavit Should be Stricken as an Improper Factual
Narrative.
An “expert cannot be presented to the jury solely for the purpose of constructing
a factual narrative based upon record evidence.” Highland Capital Mgmt. v. Schneider,
379 F. Supp. 2d 461, 468-69 (S.D.N.Y. 2005) (“To the extent that O'Shea is simply
rehashing otherwise admissible evidence about which he has no personal knowledge,
such evidence - taken on its own - is inadmissible.”); see also, e.g., Taylor v. Evans, 1997
U.S. Dist. LEXIS 3907, at *3-4 (S.D.N.Y. 1997) (affirming exclusion of expert where report
was “the equivalent of an attorneys' closing argument,” and addressed “factual issues
which could be understood without the aid of expert testimony”). In other words, an
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expert may not present documents “with no analysis or merely read, selectively quote
from, or regurgitate the evidence.” Danley v. Bayer, 169 F. Supp. 3d 396, 478 (S.D.N.Y.
2016) (citation and quotation marks omitted).
Plaintiffs admit that Cusack’s Affidavit consists of regurgitation of produced
documents. Strike Opp. at 3 (“Little rides on the admissibility of Mr. Cusack’s testimony
at this stage because it only confirms what Plaintiffs’ class certification motion shows
the Court can reasonably infer from voluminous other evidence.”). Accordingly,
Cusack’s Affidavit should be stricken. Highland, 379 F. Supp. 2d at 468-69; see also, e.g.,
Taylor, 1997 U.S. Dist. LEXIS 3907, at *3-4; Danley, 169 F. Supp. 3d at 478.
III. Cusack’s Affidavit Should Be Stricken as Unhelpful.
Plaintiffs admit that Cusack does not assist the Court in adjudicating the motion
for class certification. See, e.g., Strike Opp. at 3 (“Little rides on the admissibility of Mr.
Cusack’s testimony at this stage because it only confirms what Plaintiffs’ class
certification motion shows the Court can reasonably infer from voluminous other
evidence.”); Class Cert. Reply at 5 (“Even if the Court does not require the aid of
Cusack’s testimony, it can see for itself…”); id. at 14 (“The Court need not accept
Cusack’s testimony to see…”).
An expert must be helpful. De Long v. Cty. of Erie, 60 N.Y.2d 296, 307 (1983);
Vaglica v. Homeyer, 30 A.D.3d 587, 589 (2d Dept. 2006). If, as Plaintiffs state, Cusack’s
testimony “only confirms” what the “Court can reasonably infer from voluminous other
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evidence,” then his opinion is not helpful and it should not be considered on this
motion to certify. 1
CONCLUSION AND RELIEF SOUGHT
Cusack’s opinions should be stricken because they constitute impermissible legal
opinions and nothing more than an argument or “factual” narrative supplied by
counsel. For these reasons, Cusack’s affidavit and deposition should be stricken and he
should be precluded from testifying on class certification issues.
* * *
1
To the extent Plaintiffs ask this Court to adjudicate Cusack’s status as a merits expert
for the jury, Plaintiffs should only be permitted to do so after they comply with Commercial
Division Rule 13(c), following a conference on a schedule for expert disclosure no later than
thirty days prior to the completion of fact discovery with disclosure to be completed no later
than four months following the completion of fact discovery. They have not done so.
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Dated: White Plains, New York
January 14, 2022
BY: DELBELLO DONNELLAN
WEINGARTEN
WISE & WIED EHR LLP
Alfr d E. onnellan
Nelida Lara
One North Lexington Avenue
11th Floor
White Plains, New York 10601
Phone: (914) 681-0200
OF COUNSEL:
Robert D. MacGill (pro hac vice)
Matthew T. Ciulla (pro hac vice)
MACGILL PC
156 E. Market St.
Suite 1200
Indianapolis, IN 46204
Phone: (317) 721-1253
Attorneys for Defendant
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Certificate of Counsel
Pursuant to Commercial Division Rule 17
I,ALFRED E. DONNELLAN, counsel for Defendant, hereby certify, pursuant to
Commercial Division Rule 17, that the word count for the foregoing document,
excluding the caption, table of contents, table of authorities, and signature block, is
1,187 words. This document therefore complies with the rule that limits briefs,
memoranda, affirmations, and affidavits to 7,000 words. I certify that the Microsoft
Word generated word count for this document is 1,187 words.
Dated: White Plains, New York
January 14, 2022
ALFRED È. DNNELLAN
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Preview
FILED: WESTCHESTER COUNTY CLERK 01/14/2022 04:04 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1070 RECEIVED NYSCEF: 05/19/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER PAMELA GOLDSTEIN, ) ELLYN & TONY BERK as Administrators ) of the Estate of Winifred Berk, and PAUL ) BENJAMIN, on behalf of themselves and ) MEMORANDUM OF LAW all others similarly situated, ) ) Index No. 60767/2018 Plaintiffs, ) Hon. Linda S. Jamieson ) vs. ) ) CONFIDENTIAL HOULIHAN LAWRENCE INC., ) ) Defendant. ) ) HOULIHAN LAWRENCE’S REPLY IN SUPPORT OF ITS CROSS MOTION TO STRIKE AFFIDAVIT AND TESTIMONY OF THOMAS CUSACK January 14, 2022 Robert D. MacGill (pro hac vice) Alfred E. Donnellan Matthew T. Ciulla (pro hac vice) Nelida Lara MACGILL PC DELBELLO DONNELLAN WEINGARTEN 156 E. Market St., Suite 1200 WISE & WIEDERKEHR LLP Indianapolis, IN 46204 One North Lexington Ave, 11th Floor (317) 721-1253 White Plains, NY 10601 (914) 681-0200 1 of 10 FILED: WESTCHESTER COUNTY CLERK 01/14/2022 04:04 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1070 RECEIVED NYSCEF: 05/19/2022 TABLE OF CONTENTS TABLE OF AUTHORITIES…………………………………………………………………….ii I. Cusack’s Affidavit Should Be Stricken Because It Invades the Exclusive Role of the Court to Decide Legal Questions………………...1 II. Cusack’s Affidavit Should be Stricken as an Improper Factual Narrative. ………………………………………………………………3 III. Cusack’s Affidavit Should Be Stricken as Unhelpful………………………..4 CONCLUSION AND RELIEF SOUGHT ……………………………………………………..5 i 2 of 10 FILED: WESTCHESTER COUNTY CLERK 01/14/2022 04:04 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1070 RECEIVED NYSCEF: 05/19/2022 TABLE OF AUTHORITIES Case(s): Page(s): Danley v. Bayer, 169 F. Supp. 3d 396, 478 (S.D.N.Y. 2016)…………………………….…………………4 De Long v. Cty. of Erie, 60 N.Y.2d 296, 307 (1983) ……………………………………………….………………4 Episcopal Diocese of Long Island v. St. Matthias Nondenominational Ministries, Inc., 69 N.Y.S.3d 664, 666 (2d Dept. 2018)……………………………………………………1 Highland Capital Mgmt. v. Schneider, 379 F. Supp. 2d 461, 468-69 (S.D.N.Y. 2005)…………………………………………3, 4 Marquart v. Yeshiva Machezikel Torah D’Chasidel Belz, 385 N.Y.S.2d 319, 321 (2d Dept. 1976)…………………………………………..……1, 3 Miriam Osborn Mem. Home Assn. v. Assessor of Rye, 2005 N.Y. Misc. LEXIS 617, at *5-8 (Westchester Cty. 2005)…………………..………1 Russo v. Feder, Kaszovitiz, Isaacson, Weber, Skala & Bass, LLP, 301 A.D.2d 63, 69 (1st Dept. 2002)………………………………………………….……1 Taylor v. Evans, 1997 U.S. Dist. LEXIS 3907, at *3-4 (S.D.N.Y. 1997)…………………………...……3, 4 Vaglica v. Homeyer, 30 A.D.3d 587, 589 (2d Dept. 2006).………………………………………………..……4 Statutes: Real Property Law 443……………………………………………………………………………2 ii 3 of 10 FILED: WESTCHESTER COUNTY CLERK 01/14/2022 04:04 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1070 RECEIVED NYSCEF: 05/19/2022 Cusack has offered impermissible legal opinions, and Plaintiffs now claim that he may do so “independent of any citations or authorities.” Cusack may not interpret the law and invade the exclusive province of this Court. Plaintiffs admit that Cusack’s Affidavit “only confirms” what “the Court can reasonably infer from voluminous other evidence.” Cusack may not offer this Court a mere regurgitation of the record. And Plaintiffs confirm that the Court can and should adjudicate the class certification motion without reference to Cusack. Therefore, he is unhelpful. For these reasons, Cusack’s Affidavit should be stricken. I. Cusack’s Affidavit Should Be Stricken Because It Invades the Exclusive Role of the Court to Decide Legal Questions. An “expert may not be utilized to offer opinion as to the legal standards which he believes should have governed a party's conduct,” and expert witnesses “should not offer opinion as to the legal obligations of parties.” Russo v. Feder, Kaszovitiz, Isaacson, Weber, Skala & Bass, LLP, 301 A.D.2d 63, 69 (1st Dept. 2002) (alteration adopted and citation omitted); see Episcopal Diocese of Long Island v. St. Matthias Nondenominational Ministries, Inc., 69 N.Y.S.3d 664, 666 (2d Dept. 2018) (“Expert opinion as to a legal conclusion is impermissible.”); Marquart v. Yeshiva Machezikel Torah D’Chasidel Belz, 385 N.Y.S.2d 319, 321 (2d Dept. 1976) (“[T]he trial court erred in allowing the expert witness to usurp its function as the sole determiner of the law.”); Miriam Osborn Mem. Home Assn. v. Assessor of Rye, 2005 N.Y. Misc. LEXIS 617, at *5-8 (Westchester Cty. 2005) (collecting cases) (“Expert opinions which embody legal conclusions interfere with the 1 4 of 10 FILED: WESTCHESTER COUNTY CLERK 01/14/2022 04:04 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1070 RECEIVED NYSCEF: 05/19/2022 Court's duty to interpret statutes and reach legal conclusions….[I]t is axiomatic that an expert is not permitted to provide legal opinions, legal conclusions, or interpret legal terms; those roles fall solely within the province of the court.”). Cusack attempts to instruct the Court how to interpret Real Property Law 443, invading its province. Cusack repeatedly confirmed that his opinions are interpretations of the “law of agency.” HLEx.60 at 86:14-17 id. at 72:17-19 ); id. at 86:3-6 .”); id. at 163:13-16 ; see also, e.g., Cusack Aff. at 34 ¶ 71 (concluding sentence: id. at 8 ¶ 17 (stating ). In doing so, he failed to even review the law, a fact that Plaintiffs gloss over. Nothing can change Cusack’s admission HLEx.60 at 86:18-20 2 5 of 10 FILED: WESTCHESTER COUNTY CLERK 01/14/2022 04:04 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1070 RECEIVED NYSCEF: 05/19/2022 id. at 74:6 (“[ Plaintiffs embrace this failure, claiming that Cusack is qualified to render his legal opinions “independent of any citations or authorities” by referencing a medical malpractice case. Strike Opp. at 7-8. This Court has already demonstrated that it will interpret Real Property Law 443. In its Opinion on Motion to Dismiss, the Court evaluated Plaintiffs’ argument that Houlihan Lawrence did not “fully disclose the risks, downsides, and options of dual agency ‘at the onset of discussions concerning agency.’” NYSCEF 370 at 8. The Court’s analysis in “interpreting the statute” was “guided by the well-traveled road of statutory interpretation.” Id. at 9. The Court should not now allow Cusack to “usurp its function as the sole determiner of the law.” Marquart, 385 N.Y.S.2d at 321. II. Cusack’s Affidavit Should be Stricken as an Improper Factual Narrative. An “expert cannot be presented to the jury solely for the purpose of constructing a factual narrative based upon record evidence.” Highland Capital Mgmt. v. Schneider, 379 F. Supp. 2d 461, 468-69 (S.D.N.Y. 2005) (“To the extent that O'Shea is simply rehashing otherwise admissible evidence about which he has no personal knowledge, such evidence - taken on its own - is inadmissible.”); see also, e.g., Taylor v. Evans, 1997 U.S. Dist. LEXIS 3907, at *3-4 (S.D.N.Y. 1997) (affirming exclusion of expert where report was “the equivalent of an attorneys' closing argument,” and addressed “factual issues which could be understood without the aid of expert testimony”). In other words, an 3 6 of 10 FILED: WESTCHESTER COUNTY CLERK 01/14/2022 04:04 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1070 RECEIVED NYSCEF: 05/19/2022 expert may not present documents “with no analysis or merely read, selectively quote from, or regurgitate the evidence.” Danley v. Bayer, 169 F. Supp. 3d 396, 478 (S.D.N.Y. 2016) (citation and quotation marks omitted). Plaintiffs admit that Cusack’s Affidavit consists of regurgitation of produced documents. Strike Opp. at 3 (“Little rides on the admissibility of Mr. Cusack’s testimony at this stage because it only confirms what Plaintiffs’ class certification motion shows the Court can reasonably infer from voluminous other evidence.”). Accordingly, Cusack’s Affidavit should be stricken. Highland, 379 F. Supp. 2d at 468-69; see also, e.g., Taylor, 1997 U.S. Dist. LEXIS 3907, at *3-4; Danley, 169 F. Supp. 3d at 478. III. Cusack’s Affidavit Should Be Stricken as Unhelpful. Plaintiffs admit that Cusack does not assist the Court in adjudicating the motion for class certification. See, e.g., Strike Opp. at 3 (“Little rides on the admissibility of Mr. Cusack’s testimony at this stage because it only confirms what Plaintiffs’ class certification motion shows the Court can reasonably infer from voluminous other evidence.”); Class Cert. Reply at 5 (“Even if the Court does not require the aid of Cusack’s testimony, it can see for itself…”); id. at 14 (“The Court need not accept Cusack’s testimony to see…”). An expert must be helpful. De Long v. Cty. of Erie, 60 N.Y.2d 296, 307 (1983); Vaglica v. Homeyer, 30 A.D.3d 587, 589 (2d Dept. 2006). If, as Plaintiffs state, Cusack’s testimony “only confirms” what the “Court can reasonably infer from voluminous other 4 7 of 10 FILED: WESTCHESTER COUNTY CLERK 01/14/2022 04:04 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1070 RECEIVED NYSCEF: 05/19/2022 evidence,” then his opinion is not helpful and it should not be considered on this motion to certify. 1 CONCLUSION AND RELIEF SOUGHT Cusack’s opinions should be stricken because they constitute impermissible legal opinions and nothing more than an argument or “factual” narrative supplied by counsel. For these reasons, Cusack’s affidavit and deposition should be stricken and he should be precluded from testifying on class certification issues. * * * 1 To the extent Plaintiffs ask this Court to adjudicate Cusack’s status as a merits expert for the jury, Plaintiffs should only be permitted to do so after they comply with Commercial Division Rule 13(c), following a conference on a schedule for expert disclosure no later than thirty days prior to the completion of fact discovery with disclosure to be completed no later than four months following the completion of fact discovery. They have not done so. 5 8 of 10 FILED: WESTCHESTER COUNTY CLERK 01/14/2022 04:04 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1070 RECEIVED NYSCEF: 05/19/2022 Dated: White Plains, New York January 14, 2022 BY: DELBELLO DONNELLAN WEINGARTEN WISE & WIED EHR LLP Alfr d E. onnellan Nelida Lara One North Lexington Avenue 11th Floor White Plains, New York 10601 Phone: (914) 681-0200 OF COUNSEL: Robert D. MacGill (pro hac vice) Matthew T. Ciulla (pro hac vice) MACGILL PC 156 E. Market St. Suite 1200 Indianapolis, IN 46204 Phone: (317) 721-1253 Attorneys for Defendant 6 9 of 10 FILED: WESTCHESTER COUNTY CLERK 01/14/2022 04:04 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1070 RECEIVED NYSCEF: 05/19/2022 Certificate of Counsel Pursuant to Commercial Division Rule 17 I,ALFRED E. DONNELLAN, counsel for Defendant, hereby certify, pursuant to Commercial Division Rule 17, that the word count for the foregoing document, excluding the caption, table of contents, table of authorities, and signature block, is 1,187 words. This document therefore complies with the rule that limits briefs, memoranda, affirmations, and affidavits to 7,000 words. I certify that the Microsoft Word generated word count for this document is 1,187 words. Dated: White Plains, New York January 14, 2022 ALFRED È. DNNELLAN 10 of 10