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NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
________________________________
ZURICH AMERICAN INSURANCE COMPANY,
Plaintiff,
v. Index No.
FIRST SPECIALTY INSURANCE CORPORATION, 652336/2018
WESTERN BEEF RETAIL, INC., and WESTERN
BEEF PROPERTIES, INC.,
Defendants.
________________________________
VIDEOCONFERENCE DEPOSITION OF
BENJAMIN B. PETROFSKY
DATE: Friday, January 22, 2021
TIME: 10:07 a.m.
LOCATION: Remote Proceeding
New York, NY 10001
REPORTED BY: Chanyri Figueroa Monsanto, Notary
Public
JOB No.: 4423774
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2
1 A P P E A R A N C E S
2 ON BEHALF OF PLAINTIFF ZURICH AMERICAN INSURANCE
3 COMPANY:
4 GABRIEL E. DARWICK, ESQUIRE (by
5 videoconference)
6 Coughlin Duffy LLP
7 88 Pine Street, 28th Floor
8 New York, NY 10005
9 gdarwick@coughlinduffy.com
10 (212) 483-0105
11
12 ROSS TOBACK, ESQUIRE (by videoconference)
13 Coughlin Duffy LLP
14 88 Pine Street, 28th Floor
15 New York, NY 10005
16 rtoback@coughlinduffy.com
17
18 ON BEHALF OF WITNESS BENJAMIN B. PETROFSKY:
19 WALTER A. KRETZ, JR., ESQUIRE (by
20 videoconference)
21 Nicoletti Hornig & Sweeney
22 88 Pine Street, 7th Floor
23 New York, NY 10005
24 wkretzjr@nicolettihornig.com
25 (212) 220-3830
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1 I N D E X
2 EXAMINATION: PAGE
3 By Mr. Darwick 5
4
5 E X H I B I T S
6 NO. DESCRIPTION PAGE
7 (None marked.)
8
9 Exhibits Previously Marked:
10 Brown Exhibit 1 Email (RB54-56) 27
11 Brown Exhibit 3 Email (RB124-128) 34
12 Brown Exhibit 6 Email (RB158) 36
13 Brown Exhibit 7 Report (1/31/17) 37
14 Brown Exhibit 12 Email (3/27/17) 41
15 Brown Exhibit 15 Email (4/27/17) 42
16 Brown Exhibit 16 Email (5/1/17) 44
17 Brown Exhibit 18 Pretrial Report (5/11/17) 44
18 Brown Exhibit 19 Email (WDAF3410) (4/27/17) 46
19 Brown Exhibit 20 Email (5/23/17) 49
20
21 (Previously marked exhibits retained by counsel.)
22
23
24
25
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1 B. PETROFSKY
2 REPORTER: Good morning. My name is
3 Chanyri Figueroa; I am the officer assigned by
4 Veritext to take the Zoom record of this proceeding.
5 I am a notary authorized to take acknowledgements and
6 administer oaths in New York State. We are now on the
7 record.
8 This is the deposition of Benjamin B.
9 Petrofsky, taken in the matter of Zurich American
10 Insurance Company v. First Specialty Insurance
11 Corporation, Western Beef Retail, Inc., and Western
12 Beef Properties, Inc., at 10:07 a.m. on January 22,
13 2021.
14 Due to the pandemic and out of concern
15 for public and participant safety, parties agree that
16 I will swear in the witness remotely outside of his
17 presence.
18 Additionally, absent an objection on
19 the record before the witness is sworn, all parties
20 agree and understand that any certified transcript
21 produced from the recording virtually of this
22 proceeding is intended for all uses permitted under
23 applicable procedural and evidentiary rules and laws
24 in the same manner as a deposition recorded by
25 stenographic means; and shall constitute written
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1 B. PETROFSKY
2 stipulation of such.
3 At this time will everyone appearing
4 remotely please identify yourself for the record.
5 MR. DARWICK: Gabe Darwick, Coughlin
6 Duffy, for plaintiff Zurich. And just to be clear, I
7 have my colleague, Ross Toback here with me as well.
8 MR. KRETZ: I'm Walter Kretz of
9 Nicoletti Hornig & Sweeney for the witness, Benjamin
10 Petrofsky.
11 REPORTER: Okay. Hearing no objection,
12 I will now swear in the witness. Please raise your
13 right hand.
14 WHEREUPON,
15 BENJAMIN B. PETROFSKY,
16 called as a witness, and having been first duly sworn
17 to tell the truth, the whole truth and nothing but the
18 truth, was examined and testified as follows:
19 EXAMINATION
20 BY MR. DARWICK:
21 Q Good morning, Mr. Petrofsky. My name is
22 Gabe Darwick. I represent the plaintiff, Zurich
23 American Insurance Company, in a lawsuit against
24 Western Beef. I am going to be asking you several
25 questions here today. I just want to start with some
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1 B. PETROFSKY
2 ground rules for the deposition. Please answer all of
3 my questions orally, no head nods or hand gestures.
4 If you don't understand any of my questions, please
5 let me know, I will rephrase them. Do not guess or
6 speculate. Only answer if you know the answer to the
7 question. If you want to take a break today and speak
8 with your counsel, or for any other reason, just let
9 me know. You just need to finish whatever question is
10 pending before we break. Do you understand those
11 instructions?
12 A I do.
13 Q Okay. Could you give us your address,
14 please?
15 A 37 Chickadee Lane, C-H-I-C-K-A-D-E-E, Lane,
16 Levittown, New York 11756.
17 Q Is that a residential or business address?
18 A That's a residential.
19 Q Okay. Are you familiar with the address 129
20 Birch Hill Road, Locust Valley, New York?
21 A Yes.
22 Q What is that address?
23 A That's my business address.
24 Q And you're appearing here today pursuant to
25 a subpoena?
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1 B. PETROFSKY
2 A Yes.
3 Q Okay. The subpoena asked you to bring with
4 you several documents responsive to certain requests;
5 did you bring those documents?
6 A I had no documents with respect to the
7 request in my possession.
8 Q So, to be clear, you searched for them and
9 were unable to find any?
10 A Yes, sir.
11 Q Are you an attorney admitted to the bar in
12 New York?
13 A Yes, I am.
14 Q Are you in good standing?
15 A Yes, I am.
16 Q Okay. We're here today to discuss an
17 underlying lawsuit filed by Desmond Garrett against
18 Western Beef and Serota Roosevelt. Do you have any
19 recollection of that lawsuit?
20 A Yes.
21 Q Did you meet with Mr. Kretz in preparation
22 for your deposition?
23 A Yes, I did.
24 Q Before you met with Mr. Kretz, did you have
25 a recollection of that lawsuit?
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2 A I had a recollection, yes.
3 Q What have you done to prepare for today's
4 deposition?
5 A I met with Mr. Kretz, and that's about it.
6 Q When did you meet?
7 A We met -- I don't recall, it was sometime
8 last week.
9 Q For how long did you meet?
10 A Approximately two hours.
11 Q Did you review any documents during that
12 meeting?
13 A No, I did not.
14 Q Have you reviewed any documents in
15 preparation for this deposition?
16 A No, sir.
17 Q Have you spoken with anyone else besides
18 Mr. Kretz about the Desmond Garrett case in
19 preparation for this deposition?
20 A No, sir.
21 Q After you received a subpoena from my firm,
22 did you contact Mr. Kretz, or did Mr. Kretz contact
23 you?
24 A I believe I contacted Mr. Kretz.
25 Q Now, before you received that subpoena, did
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2 you know about this litigation?
3 A I must have, yes. I believe so, yes.
4 Q How did you learn about it?
5 A I don't recall.
6 Q All right. Briefly, can you tell me about
7 your educational background?
8 A I had an associate's degree in criminal
9 justice. I have a bachelor's degree in management,
10 and I have a law degree from Touro Law School.
11 Q How long have you been practicing law?
12 A Since 2004. I would say about 15 years,
13 roughly.
14 Q What as your profession before you began
15 practicing law?
16 A I worked with the New York City Police
17 Department.
18 Q Were you a police officer?
19 A Yes.
20 Q For how long were you a police officer?
21 A Twenty years.
22 Q Have you taken any educational or formal
23 classes in adjusting claims?
24 A No.
25 Q Have you ever worked for an insurance
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2 company in adjusting claims?
3 A No.
4 Q Have you ever worked for any entity where
5 you adjusted claims?
6 A No.
7 Q Do you know what it means to adjust claims?
8 A I don't know exactly.
9 Q When I've been asking you about your
10 experience in adjusting claims, what have you
11 understood my questions to be soliciting?
12 A Whether I had a formal education, background
13 in adjusting claims.
14 Q Do you understand that one of the
15 responsibilities of an insurance company is to manage
16 the defense of a litigation against its insured, to
17 settle it, if appropriate, or take it to a verdict, if
18 appropriate?
19 A Yes, sir.
20 Q Okay. That's really what I'm referring to
21 as adjusting claims, to an insurance company managing
22 a litigation against its insured.
23 A Okay.
24 Q With that understanding, have you taken any
25 classes, formal or less formal, in adjusting claims?
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2 A No, sir.
3 Q What was your first job after graduating
4 from law school?
5 A I opened my practice in Brooklyn.
6 Q Were you a solo practitioner?
7 A Yes, sir.
8 Q What was the focus of your practice?
9 A At that time it was criminal law.
10 Q How long did your practice focus on criminal
11 law?
12 A Probably, I mean, I've been practicing
13 criminal law the whole time, so focused would be
14 probably the first two or three years was the focus on
15 criminal law.
16 Q So, you eventually expanded your practice
17 areas?
18 A Yes, sir.
19 Q What practice areas did you expand into?
20 A Matrimonial, contract law. More like a
21 general practitioner, I guess. There may have been
22 some other cases that came, maybe some administrative
23 cases; I just don't recall specifically right now.
24 Q How long did you have a solo practice?
25 A I've been in solo practice since 2004.
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2 Q Okay. So, you've had a solo practice from
3 2004 to present?
4 A Correct.
5 Q Are you familiar with the entities known as
6 Western Beef Retail and Western Beef Properties?
7 A Yes.
8 Q How are you familiar with them?
9 A I worked for Western Beef.
10 Q When did you become affiliated with Western
11 Beef?
12 A It was December of 2012.
13 Q Did you become an employee of Western Beef?
14 A I did, yes.
15 Q While you were an employee of Western Beef,
16 did you maintain your solo practice?
17 A I did maintain my solo practice, yes.
18 Q When you first joined Western Beef, what was
19 your position?
20 A I was the director of security.
21 Q Is that a legal position?
22 A Could you define legal position, please?
23 A Were you practicing as an attorney on behalf
24 of Western Beef in your position as director of legal
25 security?
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2 A No. No, sir.
3 Q What were your responsibilities as director
4 of legal security?
5 A I was in charge of the security for the
6 stores and investigations on employee theft.
7 Q And the responsibilities?
8 A Shrink prevention, which is loss prevention.
9 Q Was does that mean?
10 A Looking at various reports and trying to
11 identify if there was loss in any particular store,
12 any particular area, and then addressing that loss.
13 Q When you say loss, are you referring to some
14 sort of theft or a personal injury claim, something
15 else?
16 A It's more like product, loss of product
17 either by theft or maybe mismanagement, that type of
18 thing.
19 Q Okay. What Western Beef entity were you
20 employed by when you were director of legal security?
21 A It was Western Beef Retail.
22 Q How long were you director of security?
23 A I was director of security until the
24 beginning or mid-2014, my best recollection.
25 Q Did you take another position with Western
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2 Beef at that time?
3 A Yes, at that time I became -- took over the
4 in-house counsel position.
5 Q What was your title?
6 A Initially it was corporate counsel and then
7 it was chief legal officer.
8 Q Who did you report to when you were
9 corporate counsel?
10 A I reported to Peter Castellana.
11 Q What was his position with the company?
12 A He was the CEO.
13 Q Did your responsibilities as corporate
14 counsel and chief legal officer differ?
15 A Could you repeat that, I'm sorry?
16 Q Did your responsibilities as chief legal
17 officer and corporate counsel differ from one another?
18 A No.
19 Q What were your responsibilities?
20 A I oversaw administratively the -- I oversaw
21 the director of security. I oversaw the real estate
22 division, and I oversaw the general liability claims.
23 Q When you say you oversaw general liability
24 claims, what do you mean?
25 A I mean administratively I was responsible
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2 for the claims, reporting and things like that.
3 Q Could you give me some more detail, please?
4 A You're going to have to ask me specific
5 questions. I, you know, will take it from there.
6 Q Sure. When you say you oversaw claims, were
7 you responsible for selecting defense counsel to
8 defend Western Beef in personal injury litigation?
9 A I was part of the process of selecting
10 defense counsel, yes.
11 Q Who else was involved?
12 A We had a third-party administrator, and then
13 ultimately the insurance company, whoever the
14 insurance company was at the time, would have --
15 ultimately would have decided whether or not a
16 particular firm that I recommended would assume that
17 role of litigating the claims, processing the claims.
18 Q Okay. Did you have any role in coordinating
19 with defense counsel in the management and strategy of
20 a particular claim?
21 MR. KRETZ: Objection; you may answer.
22 THE WITNESS: Sure. I'm sorry, could
23 you just repeat that again? I want to make sure I
24 understand the question.
25 Q Did you have any role in coordinating the
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2 management and strategy of the general liability claim
3 with defense counsel?
4 A I did not manage the strategy of the claim;
5 that was up to the attorneys. Administratively, I
6 would have had a role.
7 Q Would anyone at Western Beef provide input
8 to defense counsel on the strategy for litigating the
9 claim?
10 A I would only provide a -- I wouldn't provide
11 a strategy; I would just respond to, if there was
12 questions, if that's what you're asking me. In other
13 words, if one of the attorneys or the law firm that
14 was handling the claim had some question, then
15 obviously I would answer that; but as far as the
16 strategy of how they would handle it, I didn't have
17 input on that.
18 Q Did anyone at Western Beef have input on
19 that?
20 A Not to my knowledge.
21 Q Okay. So, if defense counsel gave you a
22 report with a specific strategy, even if you disagreed
23 with it, you wouldn't voice that opinion?
24 A I don't ever recall disagreeing with it, you
25 know, when that came up, so I can't answer that
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1 B. PETROFSKY
2 question.
3 Q Did you have any role in settling cases?
4 A I did have a role in settling cases.
5 Q What was your role?
6 A In providing the authority for the
7 settlement amounts.
8 Q Did you have to go to anyone in order to get
9 authority for certain settlements?
10 A I would have to get permission from Peter
11 Castellana to settle the cases.
12 Q For all cases or cases above a certain
13 amount?
14 A For all cases.
15 Q To what extent would you communicate with
16 the CEO about general liability claims?
17 A Typically, the CEO was concerned with the
18 amount of cases, so keeping him apprised periodically
19 of how many cases we had. The reserves on the cases
20 from time to time, would have to give him some
21 information on what the outstanding reserves were.
22 And if there was any significant cases that would, you
23 know, be likely to pierce the self-insurance
24 retention, I would have to -- normally, I would advise
25 him of that.
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1 B. PETROFSKY
2 Q Who was responsible at Western Beef for
3 setting reserves?
4 A The reserves were set by a third-party
5 administrator in conjunction with the law firm that
6 was handling the claim.
7 Q Did the third-party administrator have the
8 authority to set a reserve without Western Beef's
9 consent?
10 A I don't know. I don't know if they did or
11 they didn't. I don't know.
12 Q Do you remember the name of the third-party
13 administrator?
14 A It was -- Broadspire was the third-party
15 administrator.
16 Q Do you recall who the individuals were at
17 Broadspire that were assigned to the Western Beef
18 account?
19 A I remember Mary Filiberto. There may have
20 been one other person, I just don't recall the name.
21 Q Was Broadspire the third-party administrator
22 throughout the time that you were corporate counsel
23 and chief legal officer?
24 A There was one prior. I just -- I don't
25 remember. I don't recall who it was right now, but
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1 B. PETROFSKY
2 there was a -- when I first took over there was a
3 different administrator, and then we switched to
4 Broadspire.
5 Q Why did you switch?
6 A The initial third-party administrator, I
7 think there was a sense that they weren't handling the
8 cases properly. And my recollection is that we had
9 requested some documentation and we weren't -- they
10 weren't very responsive, so we decided to move to --
11 move to a new third-party administrator.
12 Q Why did your title change from corporate
13 counsel to chief legal officer?
14 A When I initially took over, I was
15 handling -- but my role, I kind of grew into the role,
16 and so at that point, when I was overseeing several of
17 the departments, I requested to have my title changed.
18 Q Was that considered a promotion?
19 A I don't think it was considered a promotion,
20 just a change in title.
21 Q During that time that you oversaw general
22 liability claims, did anyone in Western Beef also have
23 responsibility for general liability claims?
24 A When you say responsibility, what are you
25 referring to, please?
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2 Q Did you work with anyone at Western Beef to
3 manage the general liability claims?
4 A Yes. I had an assistant, Sandi Lohay.
5 Q Anyone else?
6 A Before Sandi there was -- there was another
7 employee briefly there, briefly, and then Sandi took
8 over. So, for the most part it was Sandi.
9 Q Do you know if Sandi has been deposed in
10 this case?
11 A I don't know that for a fact, no.
12 Q So, you haven't read her transcript?
13 A No, sir.
14 Q Does the name Joseph Galarza sound familiar
15 to you?
16 A Yeah, Joe Galarza was the first person who
17 was assisting in the administration of the claims.
18 Q What was Mr. Galarza's title?
19 A I don't recall.
20 Q Do you know what experience, if any, he had
21 in adjusting claims?
22 A I don't know.
23 Q Before you became, I guess -- strike that.
24 Before you became responsible for overseeing general
25 liability claims, did you have any experience in
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2 managing litigations against companies?
3 A No, sir.
4 Q What was Ms. Lohay's role in connection with
5 general liability claims during the time that you were
6 corporate counsel and chief legal officer?
7 A She operated in an administrative capacity
8 as far as accounting for the claims, inputting the
9 claims into the computer system, and she would, I
10 guess, be an intermediary between me and some of the
11 law firms. If, you know, I needed some information, I
12 normally would go through Sandi on that.
13 Q Did she handle more of the day-to-day
14 management of claims?
15 MR. KRETZ: Objection; you can answer.
16 A Yeah, I think that's fair to say, yes.
17 Q Now, during the time that you were
18 overseeing the general liability claims, you were also
19 overseeing the real estate division and overseeing
20 security; is that right?
21 A Yes.
22 Q You also had your own practice?
23 A Yes.
24 Q Are you familiar with Robert Brown?
25 A Yes, sir.
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2 Q How do you know Mr. Brown?
3 A I know Mr. Brown since we were in the police
4 department together.
5 Q Did there come a time when Mr. Brown began
6 to handle the defense of Western Beef in personal
7 injury claims?
8 A Yes, sir.
9 Q When was that?
10 A I don't recall the exact time frame, sorry.
11 Q How did that come about?
12 A We were transitioning from the old law firm.
13 The CEO wanted to have a new law firm come in and take
14 over the general liability claims, and so I reached
15 out to Mr. Brown to see if he was interested in doing
16 that kind of work for us.
17 Q And he was ultimately retained?
18 A Yes.
19 Q Did First Specialty, the insurer, approve
20 Mr. Brown's retention?
21 A I believe they did, yes.
22 Q What was the division of responsibility
23 between Western Beef and Broadspire for managing
24 general liability claims?
25 A I'm not sure I'm understanding your
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1 B. PETROFSKY
2 question, I'm sorry. Could you --
3 Q Well, let's just say a lawsuit was brought
4 against Western Beef, and Broadspire was the third-
5 party administrator, which I'm going to call the TPA,
6 okay?
7 A Okay, sure, sure.
8 Q In that circumstance, what would Broadspire
9 do during the course of the litigation versus what
10 would Western Beef do?
11 A Broadspire, again, would coordinate with the
12 law firm that had the case. They would -- they had a
13 reporting system in place, so the attorney would
14 prepare a report that would go to them. They would
15 list several. I don't remember the entire report, but
16 basically it was kind of an overview of the case. I
17 think there would be a suggestion as far as a
18 retention amount, potential liability, and then a
19 sense of what the litigation -- what the litigation
20 was about and sort of a plan of action moving forward.
21 From my best recollection, that's what the report was.
22 And then the TPA and the law firm would communicate
23 back and forth.
24 Q Okay. And so what was Western Beef's role
25 during this process?
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2 A Well, my role was typically review the
3 reports. I was more concerned when I looked at the
4 reports of our potential liability and our exposure.
5 So, that's what I was looking for so that I could keep
6 track of, or see if there was any potential of us
7 going over our SIR or potentially hitting the top of
8 the SIR. So, that was kind of my role in that.
9 Q Now, earlier you said that you recalled the
10 Desmond Garrett lawsuit. Remember that testimony?
11 A Yes.
12 Q During the time that you were chief legal
13 officer and corporate counsel, there were dozens of
14 lawsuits filed against Western Beef; is that fair?
15 A Yes, that's fair, sure.
16 Q Why is it you remember the Garrett lawsuit?
17 A I don't know. I don't know.
18 Q What do you remember about it?
19 A I remember that there was an issue of where
20 the actual slip-and-fall had taken place, and I just
21 have a general recollection of that.
22 Q And why was the location of where the slip-
23 and-fall had taken place relevant?
24 A Well, my recollection, it was relevant
25 because of -- if it had occurred somewhere other, you
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1 B. PETROFSKY
2 know -- depending on where it occurred would determine
3 on who was liable.
4 Q And when you say who was liable, who are you
5 referring to?
6 A It was either whether we would be liable,
7 the landlord be liable, or the town could potentially
8 be liable.
9 Q When you say we, you mean Western Beef?
10 A Western Beef, I'm sorry, yeah, whether
11 Western Beef would be liable.
12 Q Did Western Beef appoint Robert Brown to
13 defend it in that lawsuit?
14 A I believe Robert Brown handled that lawsuit,
15 yes.
16 Q Did Western Beef appoint Robert Brown to
17 defend Serota Roosevelt in that lawsuit?
18 A I believe we did, yes.
19 Q Whose decision was it to appoint Mr. Brown
20 to defend Western Beef and Serota?
21 A Well, ultimately it would be Mr. Brown's
22 recommendation of whether or not we should represent
23 them, and it would be my decision on whether we would
24 defend them or not.
25 Q Okay. Now, by agreeing to defend Serota in
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1 B. PETROFSKY
2 the Garrett lawsuit, was Western Beef also agreeing to
3 indemnify it?
4 A No.
5 Q How did Western Beef communicate to Serota
6 that while it was providing a defense, it was not
7 providing indemnity?
8 A That would have been -- the attorney would
9 be responsible for communicating with Serota.
10 Q So, it is your view that Mr. Brown should
11 have advised Serota that Western Beef was defending it
12 but not necessarily indemnifying it?
13 A That's my understanding that that was done,
14 but, yes, that's --
15 Q Did you have a conversation, or did anyone
16 at Western Beef have a conversation with Mr. Brown
17 where that expectation was communicated to him?
18 A I don't recall.
19 Q Why is it that you believe that Mr. Brown
20 should have been the one to communicate that issue to
21 Serota?
22 A Brown was the attorney that was defending
23 Western Beef, so that would be his responsibility.
24 Q So, is that an assumption that you made or
25 was there any sort of agreement between you and
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1 B. PETROFSKY
2 Mr. Brown, that he would take on that responsibility?
3 A I don't recall a specific agreement, no.
4 Q During the time that you were overseeing
5 general liability claims, did Western Beef ever
6 appoint Mr. Brown to defend a landlord in a litigation
7 besides the Garrett case?
8 A I don't recall that ever happening before.
9 Q All right.
10 MR. DARWICK: Can you enable the share
11 screen function for me?
12 REPORTER: It is enabled.
13 MR. DARWICK: Great.
14 BY MR. DARWICK:
15 Q Mr. Petrofsky, I'm going to show you what's
16 been previously marked as Brown Exhibit 1. Are you
17 able to see this?
18 A Yes, I can see it.
19 (Brown Exhibit 1 previously marked for
20 identification.)
21 Q All right. I'm going to take you down to
22 the bottom email.
23 MR. KRETZ: Gabe, since I can't look at
24 the screen, can you just identify the document?
25 MR. DARWICK: It's an email exchange,
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1 B. PETROFSKY
2 date-stamped RD54 through 56, previously marked as
3 Brown Exhibit 1.
4 MR. KRETZ: Okay.
5 BY MR. DARWICK:
6 Q The bottom email is from Mr. Galarza to
7 Notice of Loss at Crawford and others, including
8 Mr. Brown, and you are cc'd. Do you see that?
9 A Yes.
10 Q Good. And it says, "Good morning. As per
11 Benny, we would like Robert Brown to handle this
12 matter." Do you see that?
13 A Yes, sir.
14 Q And when they say Benny, that's you?
15 A Yes, sir.
16 Q So, according to this email, you have asked
17 Mr. Brown to handle this litigation?
18 A According to this email, yes.
19 Q You have a recollection of this email?
20 A No, sir.
21 Q I'm going to bring you up a little bit
22 further to the first email. It's from
23 mcolamonico@robertbrownlaw.com to
24 deborahdillon@choosebroadspire. Do you see that?
25 A Yes, sir.
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1 B. PETROFSKY
2 Q Do you know who M. Colamonico is?
3 A I believe she works for Robert Brown, or
4 worked with him at this time.
5 Q Now, this email says, "Joe Galarza has
6 informed me he will be answering for Serota Roosevelt
7 and already has." Do you see that?
8 A Yes, sir.
9 Q Do you have any recollection of instructing
10 Mr. Galarza to relay to t
Preview
FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ________________________________ ZURICH AMERICAN INSURANCE COMPANY, Plaintiff, v. Index No. FIRST SPECIALTY INSURANCE CORPORATION, 652336/2018 WESTERN BEEF RETAIL, INC., and WESTERN BEEF PROPERTIES, INC., Defendants. ________________________________ VIDEOCONFERENCE DEPOSITION OF BENJAMIN B. PETROFSKY DATE: Friday, January 22, 2021 TIME: 10:07 a.m. LOCATION: Remote Proceeding New York, NY 10001 REPORTED BY: Chanyri Figueroa Monsanto, Notary Public JOB No.: 4423774 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 2 1 A P P E A R A N C E S 2 ON BEHALF OF PLAINTIFF ZURICH AMERICAN INSURANCE 3 COMPANY: 4 GABRIEL E. DARWICK, ESQUIRE (by 5 videoconference) 6 Coughlin Duffy LLP 7 88 Pine Street, 28th Floor 8 New York, NY 10005 9 gdarwick@coughlinduffy.com 10 (212) 483-0105 11 12 ROSS TOBACK, ESQUIRE (by videoconference) 13 Coughlin Duffy LLP 14 88 Pine Street, 28th Floor 15 New York, NY 10005 16 rtoback@coughlinduffy.com 17 18 ON BEHALF OF WITNESS BENJAMIN B. PETROFSKY: 19 WALTER A. KRETZ, JR., ESQUIRE (by 20 videoconference) 21 Nicoletti Hornig & Sweeney 22 88 Pine Street, 7th Floor 23 New York, NY 10005 24 wkretzjr@nicolettihornig.com 25 (212) 220-3830 Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 3 1 I N D E X 2 EXAMINATION: PAGE 3 By Mr. Darwick 5 4 5 E X H I B I T S 6 NO. DESCRIPTION PAGE 7 (None marked.) 8 9 Exhibits Previously Marked: 10 Brown Exhibit 1 Email (RB54-56) 27 11 Brown Exhibit 3 Email (RB124-128) 34 12 Brown Exhibit 6 Email (RB158) 36 13 Brown Exhibit 7 Report (1/31/17) 37 14 Brown Exhibit 12 Email (3/27/17) 41 15 Brown Exhibit 15 Email (4/27/17) 42 16 Brown Exhibit 16 Email (5/1/17) 44 17 Brown Exhibit 18 Pretrial Report (5/11/17) 44 18 Brown Exhibit 19 Email (WDAF3410) (4/27/17) 46 19 Brown Exhibit 20 Email (5/23/17) 49 20 21 (Previously marked exhibits retained by counsel.) 22 23 24 25 Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 4 1 B. PETROFSKY 2 REPORTER: Good morning. My name is 3 Chanyri Figueroa; I am the officer assigned by 4 Veritext to take the Zoom record of this proceeding. 5 I am a notary authorized to take acknowledgements and 6 administer oaths in New York State. We are now on the 7 record. 8 This is the deposition of Benjamin B. 9 Petrofsky, taken in the matter of Zurich American 10 Insurance Company v. First Specialty Insurance 11 Corporation, Western Beef Retail, Inc., and Western 12 Beef Properties, Inc., at 10:07 a.m. on January 22, 13 2021. 14 Due to the pandemic and out of concern 15 for public and participant safety, parties agree that 16 I will swear in the witness remotely outside of his 17 presence. 18 Additionally, absent an objection on 19 the record before the witness is sworn, all parties 20 agree and understand that any certified transcript 21 produced from the recording virtually of this 22 proceeding is intended for all uses permitted under 23 applicable procedural and evidentiary rules and laws 24 in the same manner as a deposition recorded by 25 stenographic means; and shall constitute written Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 5 1 B. PETROFSKY 2 stipulation of such. 3 At this time will everyone appearing 4 remotely please identify yourself for the record. 5 MR. DARWICK: Gabe Darwick, Coughlin 6 Duffy, for plaintiff Zurich. And just to be clear, I 7 have my colleague, Ross Toback here with me as well. 8 MR. KRETZ: I'm Walter Kretz of 9 Nicoletti Hornig & Sweeney for the witness, Benjamin 10 Petrofsky. 11 REPORTER: Okay. Hearing no objection, 12 I will now swear in the witness. Please raise your 13 right hand. 14 WHEREUPON, 15 BENJAMIN B. PETROFSKY, 16 called as a witness, and having been first duly sworn 17 to tell the truth, the whole truth and nothing but the 18 truth, was examined and testified as follows: 19 EXAMINATION 20 BY MR. DARWICK: 21 Q Good morning, Mr. Petrofsky. My name is 22 Gabe Darwick. I represent the plaintiff, Zurich 23 American Insurance Company, in a lawsuit against 24 Western Beef. I am going to be asking you several 25 questions here today. I just want to start with some Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 6 1 B. PETROFSKY 2 ground rules for the deposition. Please answer all of 3 my questions orally, no head nods or hand gestures. 4 If you don't understand any of my questions, please 5 let me know, I will rephrase them. Do not guess or 6 speculate. Only answer if you know the answer to the 7 question. If you want to take a break today and speak 8 with your counsel, or for any other reason, just let 9 me know. You just need to finish whatever question is 10 pending before we break. Do you understand those 11 instructions? 12 A I do. 13 Q Okay. Could you give us your address, 14 please? 15 A 37 Chickadee Lane, C-H-I-C-K-A-D-E-E, Lane, 16 Levittown, New York 11756. 17 Q Is that a residential or business address? 18 A That's a residential. 19 Q Okay. Are you familiar with the address 129 20 Birch Hill Road, Locust Valley, New York? 21 A Yes. 22 Q What is that address? 23 A That's my business address. 24 Q And you're appearing here today pursuant to 25 a subpoena? Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 7 1 B. PETROFSKY 2 A Yes. 3 Q Okay. The subpoena asked you to bring with 4 you several documents responsive to certain requests; 5 did you bring those documents? 6 A I had no documents with respect to the 7 request in my possession. 8 Q So, to be clear, you searched for them and 9 were unable to find any? 10 A Yes, sir. 11 Q Are you an attorney admitted to the bar in 12 New York? 13 A Yes, I am. 14 Q Are you in good standing? 15 A Yes, I am. 16 Q Okay. We're here today to discuss an 17 underlying lawsuit filed by Desmond Garrett against 18 Western Beef and Serota Roosevelt. Do you have any 19 recollection of that lawsuit? 20 A Yes. 21 Q Did you meet with Mr. Kretz in preparation 22 for your deposition? 23 A Yes, I did. 24 Q Before you met with Mr. Kretz, did you have 25 a recollection of that lawsuit? Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 8 1 B. PETROFSKY 2 A I had a recollection, yes. 3 Q What have you done to prepare for today's 4 deposition? 5 A I met with Mr. Kretz, and that's about it. 6 Q When did you meet? 7 A We met -- I don't recall, it was sometime 8 last week. 9 Q For how long did you meet? 10 A Approximately two hours. 11 Q Did you review any documents during that 12 meeting? 13 A No, I did not. 14 Q Have you reviewed any documents in 15 preparation for this deposition? 16 A No, sir. 17 Q Have you spoken with anyone else besides 18 Mr. Kretz about the Desmond Garrett case in 19 preparation for this deposition? 20 A No, sir. 21 Q After you received a subpoena from my firm, 22 did you contact Mr. Kretz, or did Mr. Kretz contact 23 you? 24 A I believe I contacted Mr. Kretz. 25 Q Now, before you received that subpoena, did Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 9 1 B. PETROFSKY 2 you know about this litigation? 3 A I must have, yes. I believe so, yes. 4 Q How did you learn about it? 5 A I don't recall. 6 Q All right. Briefly, can you tell me about 7 your educational background? 8 A I had an associate's degree in criminal 9 justice. I have a bachelor's degree in management, 10 and I have a law degree from Touro Law School. 11 Q How long have you been practicing law? 12 A Since 2004. I would say about 15 years, 13 roughly. 14 Q What as your profession before you began 15 practicing law? 16 A I worked with the New York City Police 17 Department. 18 Q Were you a police officer? 19 A Yes. 20 Q For how long were you a police officer? 21 A Twenty years. 22 Q Have you taken any educational or formal 23 classes in adjusting claims? 24 A No. 25 Q Have you ever worked for an insurance Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 10 1 B. PETROFSKY 2 company in adjusting claims? 3 A No. 4 Q Have you ever worked for any entity where 5 you adjusted claims? 6 A No. 7 Q Do you know what it means to adjust claims? 8 A I don't know exactly. 9 Q When I've been asking you about your 10 experience in adjusting claims, what have you 11 understood my questions to be soliciting? 12 A Whether I had a formal education, background 13 in adjusting claims. 14 Q Do you understand that one of the 15 responsibilities of an insurance company is to manage 16 the defense of a litigation against its insured, to 17 settle it, if appropriate, or take it to a verdict, if 18 appropriate? 19 A Yes, sir. 20 Q Okay. That's really what I'm referring to 21 as adjusting claims, to an insurance company managing 22 a litigation against its insured. 23 A Okay. 24 Q With that understanding, have you taken any 25 classes, formal or less formal, in adjusting claims? Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 11 1 B. PETROFSKY 2 A No, sir. 3 Q What was your first job after graduating 4 from law school? 5 A I opened my practice in Brooklyn. 6 Q Were you a solo practitioner? 7 A Yes, sir. 8 Q What was the focus of your practice? 9 A At that time it was criminal law. 10 Q How long did your practice focus on criminal 11 law? 12 A Probably, I mean, I've been practicing 13 criminal law the whole time, so focused would be 14 probably the first two or three years was the focus on 15 criminal law. 16 Q So, you eventually expanded your practice 17 areas? 18 A Yes, sir. 19 Q What practice areas did you expand into? 20 A Matrimonial, contract law. More like a 21 general practitioner, I guess. There may have been 22 some other cases that came, maybe some administrative 23 cases; I just don't recall specifically right now. 24 Q How long did you have a solo practice? 25 A I've been in solo practice since 2004. Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 12 1 B. PETROFSKY 2 Q Okay. So, you've had a solo practice from 3 2004 to present? 4 A Correct. 5 Q Are you familiar with the entities known as 6 Western Beef Retail and Western Beef Properties? 7 A Yes. 8 Q How are you familiar with them? 9 A I worked for Western Beef. 10 Q When did you become affiliated with Western 11 Beef? 12 A It was December of 2012. 13 Q Did you become an employee of Western Beef? 14 A I did, yes. 15 Q While you were an employee of Western Beef, 16 did you maintain your solo practice? 17 A I did maintain my solo practice, yes. 18 Q When you first joined Western Beef, what was 19 your position? 20 A I was the director of security. 21 Q Is that a legal position? 22 A Could you define legal position, please? 23 A Were you practicing as an attorney on behalf 24 of Western Beef in your position as director of legal 25 security? Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 13 1 B. PETROFSKY 2 A No. No, sir. 3 Q What were your responsibilities as director 4 of legal security? 5 A I was in charge of the security for the 6 stores and investigations on employee theft. 7 Q And the responsibilities? 8 A Shrink prevention, which is loss prevention. 9 Q Was does that mean? 10 A Looking at various reports and trying to 11 identify if there was loss in any particular store, 12 any particular area, and then addressing that loss. 13 Q When you say loss, are you referring to some 14 sort of theft or a personal injury claim, something 15 else? 16 A It's more like product, loss of product 17 either by theft or maybe mismanagement, that type of 18 thing. 19 Q Okay. What Western Beef entity were you 20 employed by when you were director of legal security? 21 A It was Western Beef Retail. 22 Q How long were you director of security? 23 A I was director of security until the 24 beginning or mid-2014, my best recollection. 25 Q Did you take another position with Western Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 14 1 B. PETROFSKY 2 Beef at that time? 3 A Yes, at that time I became -- took over the 4 in-house counsel position. 5 Q What was your title? 6 A Initially it was corporate counsel and then 7 it was chief legal officer. 8 Q Who did you report to when you were 9 corporate counsel? 10 A I reported to Peter Castellana. 11 Q What was his position with the company? 12 A He was the CEO. 13 Q Did your responsibilities as corporate 14 counsel and chief legal officer differ? 15 A Could you repeat that, I'm sorry? 16 Q Did your responsibilities as chief legal 17 officer and corporate counsel differ from one another? 18 A No. 19 Q What were your responsibilities? 20 A I oversaw administratively the -- I oversaw 21 the director of security. I oversaw the real estate 22 division, and I oversaw the general liability claims. 23 Q When you say you oversaw general liability 24 claims, what do you mean? 25 A I mean administratively I was responsible Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 15 1 B. PETROFSKY 2 for the claims, reporting and things like that. 3 Q Could you give me some more detail, please? 4 A You're going to have to ask me specific 5 questions. I, you know, will take it from there. 6 Q Sure. When you say you oversaw claims, were 7 you responsible for selecting defense counsel to 8 defend Western Beef in personal injury litigation? 9 A I was part of the process of selecting 10 defense counsel, yes. 11 Q Who else was involved? 12 A We had a third-party administrator, and then 13 ultimately the insurance company, whoever the 14 insurance company was at the time, would have -- 15 ultimately would have decided whether or not a 16 particular firm that I recommended would assume that 17 role of litigating the claims, processing the claims. 18 Q Okay. Did you have any role in coordinating 19 with defense counsel in the management and strategy of 20 a particular claim? 21 MR. KRETZ: Objection; you may answer. 22 THE WITNESS: Sure. I'm sorry, could 23 you just repeat that again? I want to make sure I 24 understand the question. 25 Q Did you have any role in coordinating the Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 16 1 B. PETROFSKY 2 management and strategy of the general liability claim 3 with defense counsel? 4 A I did not manage the strategy of the claim; 5 that was up to the attorneys. Administratively, I 6 would have had a role. 7 Q Would anyone at Western Beef provide input 8 to defense counsel on the strategy for litigating the 9 claim? 10 A I would only provide a -- I wouldn't provide 11 a strategy; I would just respond to, if there was 12 questions, if that's what you're asking me. In other 13 words, if one of the attorneys or the law firm that 14 was handling the claim had some question, then 15 obviously I would answer that; but as far as the 16 strategy of how they would handle it, I didn't have 17 input on that. 18 Q Did anyone at Western Beef have input on 19 that? 20 A Not to my knowledge. 21 Q Okay. So, if defense counsel gave you a 22 report with a specific strategy, even if you disagreed 23 with it, you wouldn't voice that opinion? 24 A I don't ever recall disagreeing with it, you 25 know, when that came up, so I can't answer that Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 17 1 B. PETROFSKY 2 question. 3 Q Did you have any role in settling cases? 4 A I did have a role in settling cases. 5 Q What was your role? 6 A In providing the authority for the 7 settlement amounts. 8 Q Did you have to go to anyone in order to get 9 authority for certain settlements? 10 A I would have to get permission from Peter 11 Castellana to settle the cases. 12 Q For all cases or cases above a certain 13 amount? 14 A For all cases. 15 Q To what extent would you communicate with 16 the CEO about general liability claims? 17 A Typically, the CEO was concerned with the 18 amount of cases, so keeping him apprised periodically 19 of how many cases we had. The reserves on the cases 20 from time to time, would have to give him some 21 information on what the outstanding reserves were. 22 And if there was any significant cases that would, you 23 know, be likely to pierce the self-insurance 24 retention, I would have to -- normally, I would advise 25 him of that. Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 18 1 B. PETROFSKY 2 Q Who was responsible at Western Beef for 3 setting reserves? 4 A The reserves were set by a third-party 5 administrator in conjunction with the law firm that 6 was handling the claim. 7 Q Did the third-party administrator have the 8 authority to set a reserve without Western Beef's 9 consent? 10 A I don't know. I don't know if they did or 11 they didn't. I don't know. 12 Q Do you remember the name of the third-party 13 administrator? 14 A It was -- Broadspire was the third-party 15 administrator. 16 Q Do you recall who the individuals were at 17 Broadspire that were assigned to the Western Beef 18 account? 19 A I remember Mary Filiberto. There may have 20 been one other person, I just don't recall the name. 21 Q Was Broadspire the third-party administrator 22 throughout the time that you were corporate counsel 23 and chief legal officer? 24 A There was one prior. I just -- I don't 25 remember. I don't recall who it was right now, but Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 19 1 B. PETROFSKY 2 there was a -- when I first took over there was a 3 different administrator, and then we switched to 4 Broadspire. 5 Q Why did you switch? 6 A The initial third-party administrator, I 7 think there was a sense that they weren't handling the 8 cases properly. And my recollection is that we had 9 requested some documentation and we weren't -- they 10 weren't very responsive, so we decided to move to -- 11 move to a new third-party administrator. 12 Q Why did your title change from corporate 13 counsel to chief legal officer? 14 A When I initially took over, I was 15 handling -- but my role, I kind of grew into the role, 16 and so at that point, when I was overseeing several of 17 the departments, I requested to have my title changed. 18 Q Was that considered a promotion? 19 A I don't think it was considered a promotion, 20 just a change in title. 21 Q During that time that you oversaw general 22 liability claims, did anyone in Western Beef also have 23 responsibility for general liability claims? 24 A When you say responsibility, what are you 25 referring to, please? Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 20 1 B. PETROFSKY 2 Q Did you work with anyone at Western Beef to 3 manage the general liability claims? 4 A Yes. I had an assistant, Sandi Lohay. 5 Q Anyone else? 6 A Before Sandi there was -- there was another 7 employee briefly there, briefly, and then Sandi took 8 over. So, for the most part it was Sandi. 9 Q Do you know if Sandi has been deposed in 10 this case? 11 A I don't know that for a fact, no. 12 Q So, you haven't read her transcript? 13 A No, sir. 14 Q Does the name Joseph Galarza sound familiar 15 to you? 16 A Yeah, Joe Galarza was the first person who 17 was assisting in the administration of the claims. 18 Q What was Mr. Galarza's title? 19 A I don't recall. 20 Q Do you know what experience, if any, he had 21 in adjusting claims? 22 A I don't know. 23 Q Before you became, I guess -- strike that. 24 Before you became responsible for overseeing general 25 liability claims, did you have any experience in Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 21 1 B. PETROFSKY 2 managing litigations against companies? 3 A No, sir. 4 Q What was Ms. Lohay's role in connection with 5 general liability claims during the time that you were 6 corporate counsel and chief legal officer? 7 A She operated in an administrative capacity 8 as far as accounting for the claims, inputting the 9 claims into the computer system, and she would, I 10 guess, be an intermediary between me and some of the 11 law firms. If, you know, I needed some information, I 12 normally would go through Sandi on that. 13 Q Did she handle more of the day-to-day 14 management of claims? 15 MR. KRETZ: Objection; you can answer. 16 A Yeah, I think that's fair to say, yes. 17 Q Now, during the time that you were 18 overseeing the general liability claims, you were also 19 overseeing the real estate division and overseeing 20 security; is that right? 21 A Yes. 22 Q You also had your own practice? 23 A Yes. 24 Q Are you familiar with Robert Brown? 25 A Yes, sir. Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 22 1 B. PETROFSKY 2 Q How do you know Mr. Brown? 3 A I know Mr. Brown since we were in the police 4 department together. 5 Q Did there come a time when Mr. Brown began 6 to handle the defense of Western Beef in personal 7 injury claims? 8 A Yes, sir. 9 Q When was that? 10 A I don't recall the exact time frame, sorry. 11 Q How did that come about? 12 A We were transitioning from the old law firm. 13 The CEO wanted to have a new law firm come in and take 14 over the general liability claims, and so I reached 15 out to Mr. Brown to see if he was interested in doing 16 that kind of work for us. 17 Q And he was ultimately retained? 18 A Yes. 19 Q Did First Specialty, the insurer, approve 20 Mr. Brown's retention? 21 A I believe they did, yes. 22 Q What was the division of responsibility 23 between Western Beef and Broadspire for managing 24 general liability claims? 25 A I'm not sure I'm understanding your Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 23 1 B. PETROFSKY 2 question, I'm sorry. Could you -- 3 Q Well, let's just say a lawsuit was brought 4 against Western Beef, and Broadspire was the third- 5 party administrator, which I'm going to call the TPA, 6 okay? 7 A Okay, sure, sure. 8 Q In that circumstance, what would Broadspire 9 do during the course of the litigation versus what 10 would Western Beef do? 11 A Broadspire, again, would coordinate with the 12 law firm that had the case. They would -- they had a 13 reporting system in place, so the attorney would 14 prepare a report that would go to them. They would 15 list several. I don't remember the entire report, but 16 basically it was kind of an overview of the case. I 17 think there would be a suggestion as far as a 18 retention amount, potential liability, and then a 19 sense of what the litigation -- what the litigation 20 was about and sort of a plan of action moving forward. 21 From my best recollection, that's what the report was. 22 And then the TPA and the law firm would communicate 23 back and forth. 24 Q Okay. And so what was Western Beef's role 25 during this process? Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 24 1 B. PETROFSKY 2 A Well, my role was typically review the 3 reports. I was more concerned when I looked at the 4 reports of our potential liability and our exposure. 5 So, that's what I was looking for so that I could keep 6 track of, or see if there was any potential of us 7 going over our SIR or potentially hitting the top of 8 the SIR. So, that was kind of my role in that. 9 Q Now, earlier you said that you recalled the 10 Desmond Garrett lawsuit. Remember that testimony? 11 A Yes. 12 Q During the time that you were chief legal 13 officer and corporate counsel, there were dozens of 14 lawsuits filed against Western Beef; is that fair? 15 A Yes, that's fair, sure. 16 Q Why is it you remember the Garrett lawsuit? 17 A I don't know. I don't know. 18 Q What do you remember about it? 19 A I remember that there was an issue of where 20 the actual slip-and-fall had taken place, and I just 21 have a general recollection of that. 22 Q And why was the location of where the slip- 23 and-fall had taken place relevant? 24 A Well, my recollection, it was relevant 25 because of -- if it had occurred somewhere other, you Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 25 1 B. PETROFSKY 2 know -- depending on where it occurred would determine 3 on who was liable. 4 Q And when you say who was liable, who are you 5 referring to? 6 A It was either whether we would be liable, 7 the landlord be liable, or the town could potentially 8 be liable. 9 Q When you say we, you mean Western Beef? 10 A Western Beef, I'm sorry, yeah, whether 11 Western Beef would be liable. 12 Q Did Western Beef appoint Robert Brown to 13 defend it in that lawsuit? 14 A I believe Robert Brown handled that lawsuit, 15 yes. 16 Q Did Western Beef appoint Robert Brown to 17 defend Serota Roosevelt in that lawsuit? 18 A I believe we did, yes. 19 Q Whose decision was it to appoint Mr. Brown 20 to defend Western Beef and Serota? 21 A Well, ultimately it would be Mr. Brown's 22 recommendation of whether or not we should represent 23 them, and it would be my decision on whether we would 24 defend them or not. 25 Q Okay. Now, by agreeing to defend Serota in Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 26 1 B. PETROFSKY 2 the Garrett lawsuit, was Western Beef also agreeing to 3 indemnify it? 4 A No. 5 Q How did Western Beef communicate to Serota 6 that while it was providing a defense, it was not 7 providing indemnity? 8 A That would have been -- the attorney would 9 be responsible for communicating with Serota. 10 Q So, it is your view that Mr. Brown should 11 have advised Serota that Western Beef was defending it 12 but not necessarily indemnifying it? 13 A That's my understanding that that was done, 14 but, yes, that's -- 15 Q Did you have a conversation, or did anyone 16 at Western Beef have a conversation with Mr. Brown 17 where that expectation was communicated to him? 18 A I don't recall. 19 Q Why is it that you believe that Mr. Brown 20 should have been the one to communicate that issue to 21 Serota? 22 A Brown was the attorney that was defending 23 Western Beef, so that would be his responsibility. 24 Q So, is that an assumption that you made or 25 was there any sort of agreement between you and Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 27 1 B. PETROFSKY 2 Mr. Brown, that he would take on that responsibility? 3 A I don't recall a specific agreement, no. 4 Q During the time that you were overseeing 5 general liability claims, did Western Beef ever 6 appoint Mr. Brown to defend a landlord in a litigation 7 besides the Garrett case? 8 A I don't recall that ever happening before. 9 Q All right. 10 MR. DARWICK: Can you enable the share 11 screen function for me? 12 REPORTER: It is enabled. 13 MR. DARWICK: Great. 14 BY MR. DARWICK: 15 Q Mr. Petrofsky, I'm going to show you what's 16 been previously marked as Brown Exhibit 1. Are you 17 able to see this? 18 A Yes, I can see it. 19 (Brown Exhibit 1 previously marked for 20 identification.) 21 Q All right. I'm going to take you down to 22 the bottom email. 23 MR. KRETZ: Gabe, since I can't look at 24 the screen, can you just identify the document? 25 MR. DARWICK: It's an email exchange, Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 28 1 B. PETROFSKY 2 date-stamped RD54 through 56, previously marked as 3 Brown Exhibit 1. 4 MR. KRETZ: Okay. 5 BY MR. DARWICK: 6 Q The bottom email is from Mr. Galarza to 7 Notice of Loss at Crawford and others, including 8 Mr. Brown, and you are cc'd. Do you see that? 9 A Yes. 10 Q Good. And it says, "Good morning. As per 11 Benny, we would like Robert Brown to handle this 12 matter." Do you see that? 13 A Yes, sir. 14 Q And when they say Benny, that's you? 15 A Yes, sir. 16 Q So, according to this email, you have asked 17 Mr. Brown to handle this litigation? 18 A According to this email, yes. 19 Q You have a recollection of this email? 20 A No, sir. 21 Q I'm going to bring you up a little bit 22 further to the first email. It's from 23 mcolamonico@robertbrownlaw.com to 24 deborahdillon@choosebroadspire. Do you see that? 25 A Yes, sir. Diamond, A Veritext Company 718-624-7200 FILED: NEW YORK COUNTY CLERK 04/06/2021 04:06 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 04/06/2021 29 1 B. PETROFSKY 2 Q Do you know who M. Colamonico is? 3 A I believe she works for Robert Brown, or 4 worked with him at this time. 5 Q Now, this email says, "Joe Galarza has 6 informed me he will be answering for Serota Roosevelt 7 and already has." Do you see that? 8 A Yes, sir. 9 Q Do you have any recollection of instructing 10 Mr. Galarza to relay to t