Preview
FILED: ERIE COUNTY CLERK 05/18/2023 04:54 PM INDEX NO. 815601/2022
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/18/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
FOLICHIA MITCHELL and DAVID
MITCHELL, Individually and as Parents and
Natural Guardians of K.M., a minor, Index No. 815601/2022
Plaintiffs AFFIRMATION IN
OPPOSITION TO
v. PLAINTIFF'S MOTION FOR
PRO HAC VICE ADMISSION
BUFFALO GAMES, LLC, MASON
WELLS, INC., MASON WELLS BUYOUT
FUND IV, and TARGET CORPORATION,
Defendants.
Cheryl A. Possenti, an attorney admitted to practice law in the State of New York affirms
the following to be true under penalties of perjury:
1. I am an attorney at law, and a member of the law firm Goldberg Segalla LLP,
counsel of record for Buffalo Games LLC and Target Corporation in the above-entitled matter
and, as such, I am fully familiar with the matters set forth in this affirmation and the facts and
circumstances surrounding this matter.
2. This affirmation is made in opposition to plaintiff's motion to admit Attorney
Thomas Bosworth pro hac vice on behalf of the plaintiff in this matter.
3. As is set forth more fully in the attached Memorandum of Law submitted
herewith, admission pro hac vice is conditioned upon counsel being familiar and complying with
the standards of conduct imposed upon those duly admitted to practice in New York. An
attorney seeking admission pro hac vice must also agree to be subject to the jurisdiction of the
courts of New York with respect to all acts occurring during the course of the attorneys
participation.
36569126.v7
1 of 4
FILED: ERIE COUNTY CLERK 05/18/2023 04:54 PM INDEX NO. 815601/2022
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/18/2023
4. Mr. Bosworth's affidavit submitted in support of his application for his admission
pro hac vice does not state that he agrees to be subject to the jurisdiction of the courts of this
state with respect to his actions and activities relating to this case.
5. Mr. Bosworth's affidavit submitted in support of his application for admission pro
hac vice does not state that he is familiar with and agrees to be bound by the rules governing
conduct of attorneys in New York State.
6. It is respectfully submitted that Motion for Admission Pro Hac Vice should be
denied because the applicant has not agreed to comply with New York State standards of
practice and has not agreed to be subject to New York State jurisdiction.
7. In addition, as is set forth more fully in the Memorandum of Law submitted
herewith, admission pro hac vice is a privilege, not a right. In deciding whether to admit an
attorney pro hac vice, the court must strike a balance between the right of a litigant to be
represented by counsel of the litigant's choosing and the court's obligation to assure that
proceedings are conducted with order and decorum.
8. Upon information and belief, Attorney Bosworth was recently admonished and
sanctioned by Judge Stephanie Haines of the U.S. District Court for the Western District of
Pennsylvania on May 2, 2023 in the matter of McCartney v. Kids2 3:21-cv-166 for
unprofessional conduct during the course of four expert depositions.
9. In granting defendant's motion for sanctions against Attorney Bosworth, the court
published a Minute Entry for Proceedings that states:
The Court advised it had reviewed the full transcripts and video of the depositions
and found that Attorney Bosworth's behavior was appalling, unprofessional, and
that his personal attacks against Defense counsel, speaking objections, and
coaching of his witnesses disrupted the depositions and made them ineffective.
The Court granted the motion for sanctions with an opinion to follow. The Court
2
36569126.v7
2 of 4
FILED: ERIE COUNTY CLERK 05/18/2023 04:54 PM INDEX NO. 815601/2022
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/18/2023
also granted Defense counsel leave to file under seal the accounting of all fees and
costs they are seeking in this matter, with a copy to Attorney Bosworth."
A copy of the Court's Memo, dated May 2, 2023, entitled "Hearing on Oral Argument on
Defendant's Motion for Sanctions" is attached hereto as Exhibit A.
10. Attorney Bosworth's conduct in the McCartney v. Kids2 matter clearly violates
New York State's standards of civility set forth in Appendix A: Standards of Civility, Section 1
"General Standards: Lawyers, Duties to the Lawyers, Litigants, Witnesses and Certain Others."
11. As is set forth more fully in the Memorandum of Law submitted herewith, the
court may exercise its discretion to deny the Motion for Admission Pro Hac Vice based on
attorney's Bosworth's conduct that was deemed unprofessional and subjected to sanction by
Judge Haines on May 2, 2023.
12. It is respectfully submitted that Motion for Admission Pro Hac Vice should be
denied because of the applicant's recent unprofessional conduct resulting in sanctions in a
litigated personal injury matter.
13. Finally, the papers submitted in support of the Motion for Admission Pro Hac
Vice do not indicate why it is necessary for Attorney Bosworth to assist the plaintiff in this
matter, especially given that plaintiffs are already represented the capable and experienced
attorneys at Feroleto Law, counsel of record.
14. As is set forth more fully in the Memorandum of Law submitted herewith, the
court may exercise its discretion to deny the Motion for Admission Pro Hac Vice based on the
lack of clarity regarding the need for and the role of out-of-state counsel in this action.
WHEREFORE, based on the foregoing, and the arguments set forth in the Memorandum
of Law submitted herewith, your affirmant respectfully requests that this Court deny the Motion
for Admission Pro Hac Vice in its entirety.
3
36569126.v7
3 of 4
FILED: ERIE COUNTY CLERK 05/18/2023 04:54 PM INDEX NO. 815601/2022
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/18/2023
DATED: May 18, 2023
Buffalo, New York
GOLDBERG SEGALLA LLP
By:
Cheryl A. Possentfi sq.
Attorneysfor Defendant
BUFFALO GAMES, LLC
and TARGET CORPORATION
665 Main Street
Buffalo, NY 14203-1425
716-566-5400
cpossenti(a goldbergsegalla.com
TO: Attorneysfor Plaintiff
John Feroleto, Esq.
Jill Wnek, Esq.
FEROLETO LAW
438 Main Street
Buffalo, NY 14202
Phone: 716-427-0242
john.feroleto(d)feroletolaw.com
jill.wnek@feroletolaw.com
Thomas E. Bosworth, Esq.
BOSWORTH LAW
(Pro hac vice motion pending)
One Liberty Place, 55th Floor
1650 Market Street
Philadelphia, PA 19103
Phone: 267-212-4177
tomhosworthlaw com
Attorneysfor Defendant Mason Wells,
Inc. and Mason Wells Buyout Fund IV
Charles J. Englert, III, Esq.
Barclay Damon LLP
The Avant Building
200 Delaware Avenue, Suite 1200
Buffalo, New York 14202
716-858-3768
cenglert@barclaydamon.com
4
36569126.v7
4 of 4
Preview
FILED: ERIE COUNTY CLERK 05/18/2023 04:54 PM INDEX NO. 815601/2022 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/18/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE FOLICHIA MITCHELL and DAVID MITCHELL, Individually and as Parents and Natural Guardians of K.M., a minor, Index No. 815601/2022 Plaintiffs AFFIRMATION IN OPPOSITION TO v. PLAINTIFF'S MOTION FOR PRO HAC VICE ADMISSION BUFFALO GAMES, LLC, MASON WELLS, INC., MASON WELLS BUYOUT FUND IV, and TARGET CORPORATION, Defendants. Cheryl A. Possenti, an attorney admitted to practice law in the State of New York affirms the following to be true under penalties of perjury: 1. I am an attorney at law, and a member of the law firm Goldberg Segalla LLP, counsel of record for Buffalo Games LLC and Target Corporation in the above-entitled matter and, as such, I am fully familiar with the matters set forth in this affirmation and the facts and circumstances surrounding this matter. 2. This affirmation is made in opposition to plaintiff's motion to admit Attorney Thomas Bosworth pro hac vice on behalf of the plaintiff in this matter. 3. As is set forth more fully in the attached Memorandum of Law submitted herewith, admission pro hac vice is conditioned upon counsel being familiar and complying with the standards of conduct imposed upon those duly admitted to practice in New York. An attorney seeking admission pro hac vice must also agree to be subject to the jurisdiction of the courts of New York with respect to all acts occurring during the course of the attorneys participation. 36569126.v7 1 of 4 FILED: ERIE COUNTY CLERK 05/18/2023 04:54 PM INDEX NO. 815601/2022 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/18/2023 4. Mr. Bosworth's affidavit submitted in support of his application for his admission pro hac vice does not state that he agrees to be subject to the jurisdiction of the courts of this state with respect to his actions and activities relating to this case. 5. Mr. Bosworth's affidavit submitted in support of his application for admission pro hac vice does not state that he is familiar with and agrees to be bound by the rules governing conduct of attorneys in New York State. 6. It is respectfully submitted that Motion for Admission Pro Hac Vice should be denied because the applicant has not agreed to comply with New York State standards of practice and has not agreed to be subject to New York State jurisdiction. 7. In addition, as is set forth more fully in the Memorandum of Law submitted herewith, admission pro hac vice is a privilege, not a right. In deciding whether to admit an attorney pro hac vice, the court must strike a balance between the right of a litigant to be represented by counsel of the litigant's choosing and the court's obligation to assure that proceedings are conducted with order and decorum. 8. Upon information and belief, Attorney Bosworth was recently admonished and sanctioned by Judge Stephanie Haines of the U.S. District Court for the Western District of Pennsylvania on May 2, 2023 in the matter of McCartney v. Kids2 3:21-cv-166 for unprofessional conduct during the course of four expert depositions. 9. In granting defendant's motion for sanctions against Attorney Bosworth, the court published a Minute Entry for Proceedings that states: The Court advised it had reviewed the full transcripts and video of the depositions and found that Attorney Bosworth's behavior was appalling, unprofessional, and that his personal attacks against Defense counsel, speaking objections, and coaching of his witnesses disrupted the depositions and made them ineffective. The Court granted the motion for sanctions with an opinion to follow. The Court 2 36569126.v7 2 of 4 FILED: ERIE COUNTY CLERK 05/18/2023 04:54 PM INDEX NO. 815601/2022 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/18/2023 also granted Defense counsel leave to file under seal the accounting of all fees and costs they are seeking in this matter, with a copy to Attorney Bosworth." A copy of the Court's Memo, dated May 2, 2023, entitled "Hearing on Oral Argument on Defendant's Motion for Sanctions" is attached hereto as Exhibit A. 10. Attorney Bosworth's conduct in the McCartney v. Kids2 matter clearly violates New York State's standards of civility set forth in Appendix A: Standards of Civility, Section 1 "General Standards: Lawyers, Duties to the Lawyers, Litigants, Witnesses and Certain Others." 11. As is set forth more fully in the Memorandum of Law submitted herewith, the court may exercise its discretion to deny the Motion for Admission Pro Hac Vice based on attorney's Bosworth's conduct that was deemed unprofessional and subjected to sanction by Judge Haines on May 2, 2023. 12. It is respectfully submitted that Motion for Admission Pro Hac Vice should be denied because of the applicant's recent unprofessional conduct resulting in sanctions in a litigated personal injury matter. 13. Finally, the papers submitted in support of the Motion for Admission Pro Hac Vice do not indicate why it is necessary for Attorney Bosworth to assist the plaintiff in this matter, especially given that plaintiffs are already represented the capable and experienced attorneys at Feroleto Law, counsel of record. 14. As is set forth more fully in the Memorandum of Law submitted herewith, the court may exercise its discretion to deny the Motion for Admission Pro Hac Vice based on the lack of clarity regarding the need for and the role of out-of-state counsel in this action. WHEREFORE, based on the foregoing, and the arguments set forth in the Memorandum of Law submitted herewith, your affirmant respectfully requests that this Court deny the Motion for Admission Pro Hac Vice in its entirety. 3 36569126.v7 3 of 4 FILED: ERIE COUNTY CLERK 05/18/2023 04:54 PM INDEX NO. 815601/2022 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/18/2023 DATED: May 18, 2023 Buffalo, New York GOLDBERG SEGALLA LLP By: Cheryl A. Possentfi sq. Attorneysfor Defendant BUFFALO GAMES, LLC and TARGET CORPORATION 665 Main Street Buffalo, NY 14203-1425 716-566-5400 cpossenti(a goldbergsegalla.com TO: Attorneysfor Plaintiff John Feroleto, Esq. Jill Wnek, Esq. FEROLETO LAW 438 Main Street Buffalo, NY 14202 Phone: 716-427-0242 john.feroleto(d)feroletolaw.com jill.wnek@feroletolaw.com Thomas E. Bosworth, Esq. BOSWORTH LAW (Pro hac vice motion pending) One Liberty Place, 55th Floor 1650 Market Street Philadelphia, PA 19103 Phone: 267-212-4177 tomhosworthlaw com Attorneysfor Defendant Mason Wells, Inc. and Mason Wells Buyout Fund IV Charles J. Englert, III, Esq. Barclay Damon LLP The Avant Building 200 Delaware Avenue, Suite 1200 Buffalo, New York 14202 716-858-3768 cenglert@barclaydamon.com 4 36569126.v7 4 of 4