Preview
FILED: ERIE COUNTY CLERK 11/09/2023 01:06 PM INDEX NO. 805265/2020
NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/09/2023
EXHIBIT A
FILED: ERIE COUNTY CLERK 11/09/2023 01:06 PM INDEX NO. 805265/2020
NYSCEF DOC. NO. 129
122 RECEIVED NYSCEF: 11/09/2023
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
_________________________________________
N.J.S., an infant, by and through his NOTICE OF CROSS-MOTION
Parent, and Natural Guardian,
MICHELE SARDO, and
MICHELE SARDO, Individually, Index No.: 805265/2020
Plaintiff,
-vs.-
WEST SENECA CENTRAL SCHOOL DISTRICT
WEST SENECA CENTRAL SCHOOL
DISTRICT BOARD OF EDUCATION
WEST SENIOR HIGH SCHOOL,
Defendants.
___________________________________________
WEST SENECA CENTRAL SCHOOL DISTRICT
WEST SENECA CENTRAL SCHOOL
DISTRICT BOARD OF EDUCATION
WEST SENIOR HIGH SCHOOL,
Third-Party Plaintiffs
-vs-
CHRYSTLER LEE STORTS,
MICHAEL JAMES STORTZ
BARBARA ANNE STORTZ, and
HEATHER THIBEALT a/k/a HEATHER A. STORTZ,
Third-Party Defendants
____________________________________________
DATE, TIME & PLACE November 22, 2023 at 9:30 a.m., or as soon
OF THE HEARING: thereafter as counsel may be heard before Hon.
Dennis E. Ward, J.S.C., at Special Term
of the Erie County Supreme Court, 25 Delaware
Avenue, Part 12, Buffalo, New Yrk 14202
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SUPPORTING PAPERS: Affidavit of Rich Hall, Esq., sworn to on
March 21, 2023, with Exhibits attached thereto, and
all pleadings and proceedings before.
RELIEF DEMANDED AND
GROUNDS THEREFORE: An Order denying Defendant’s motion to adjunre
the subject trial and an Orderrpursuant to CPLR
603, to sever the
Action, together with such other and further relief
as the Court deems just and proper.
TYPE OF ACTION: The above-entitled action is for personal injury.
ANSWERING AFFIDAVITS: Any and all answering papers and Memorandum of
Law shall be served upon the undersigned at least 7
days prior to the return date of this motion as
required by CPLR 2214(b) and 22 NYCRR
202.8(c).
ORAL ARGUMENT: Requested.
DATED: November 8, 2023
Buffalo, New York
CANTOR, WOLFF, NICASTRO & HALL
/s/ Ric Hal , Esq.
_________________________________________
Rich Hall, Esq.
Attorneys for Plaintiffs
350 Main Street, Suite 2140
Buffalo, New York 14202
(716) 848-8000
TO: Louis B. Dingeldey, Esq.
BAXTER SMITH & SHAPIRO, P.C.
Attorneys for Defendants/Third-Party Plaintiffs
182 Dwyer Street
West Seneca, New York 14224
(716) 854-6140
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CC: Thomas Lent, Esq.
MARSHALL DENNEHEY WARNER
COLEMAN & GOGGIN
Attorneys for Third-Party Defendant
Heather A. Thibealt a/k/a Heather A. Stortz
717 State Street, Suite 701
Erie, Pennsylvania 16501
(814) 480-7800
Gregory P. Krull, Esq.
LIPSITZ GREEN SCIME CAMBRIA LLP
Attorneys for Third-Party Defendant
Chrystler Lee Stortz
42 Delaware Avenue, Suite 120
Buffalo, New York 14202
(716) 849-1333
Kristine Celeste, Esq.
DUKE HOLZMAN PHOTIADIS & GRESENS LLP
701 Seneca Street, Suite 750
Buffalo, New York 14210
(716) 855-1111
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NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/09/2023
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
_________________________________________
N.J.S., an infant, by and through his ATTORNEY AFFIRMATION
Parent, and Natural Guardian,
MICHELE SARDO, and
MICHELE SARDO, Individually, Index No.: 805265/2020
Plaintiff,
-vs.-
WEST SENECA CENTRAL SCHOOL DISTRICT
WEST SENECA CENTRAL SCHOOL
DISTRICT BOARD OF EDUCATION
WEST SENIOR HIGH SCHOOL,
Defendants.
___________________________________________
WEST SENECA CENTRAL SCHOOL DISTRICT
WEST SENECA CENTRAL SCHOOL
DISTRICT BOARD OF EDUCATION
WEST SENIOR HIGH SCHOOL,
Third-Party Plaintiffs
-vs-
CHRYSTLER LEE STORTS,
MICHAEL JAMES STORTZ
BARBARA ANNE STORTZ, and
HEATHER THIBEALT a/k/a HEATHER A. STORTZ,
Third-Party Defendants
____________________________________________
Richard A. Hall. Esq., states the following under penalty of perjury pursuant to CPLR 2106:
1. I am an attorney at law duly licensed to practice in the State of New York
and am a partner with the Law Office of Cantor, Wolff, Nicastro & Hall, LLC, counsel
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for Plaintiffs, in this action As such, I am fully familiar with the facts and circumstances
of this matter.
2. I respectfully submit this Affirmation in opposition to Defendant West
Seneca Central School District’s (hereinafterWest Seneca CSD) Motion which seeks an
Order granting an adjournment of the upcoming trial and in support of the Plaintiffs’
Cross Motion to sever and separate the trial of the Plaintiff and Defendant from the trial
of any matter between the Third-Party Plaintiff and Third-Party Defendant.
3. Defendant West Seneca CSD’s Motion should be denied. None of the
concerns raised by Defendant West Seneca CSD to support the request for an
adjournment substantiate the need for a trial delay. Granting such an adjournment will
significantly disrupt the timely progression of proceedings and adversely affect the
interests of all parties involved, in particular, the victim of the rape at the heart of this
matter.
4. First, Defendant West Seneca CSD asserts that an adjournment is required
due to a pending motion by counsel for Third-Party Defendant, Chrystler Stortz, to
withdraw as counsel. This point assumes, I believe incorrectly, that the Court will grant
that motion. Assuming that the motion is denied, Mr. Stortz will have representation at
trial. As discussed in more detail below, this assertion is further obviated by the Court
granting Plaintiff’s Cross-Motion to sever and separate this trial. Severing this trial will
remove Defendant West Seneca CSD’s concerns regarding the representation of Mr.
Stortz.
5. In a severed trial, Third-Party Defendant Strotz would not need to appear
for the duration of the trial, nor would counsel for Mr.Stortz. Counsel for Third-Party
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Defendant, Chrystler Stortz would only need to appear on the one occasion that
Defendant Strotz testifies. After the severed trial, Mr. Strotz would have ample time to
find new counsel. Severance would allow the trial to proceed while relieving opposing
counsel of their various concerns and burdens.
6. Furthermore, Mr. Stortz's testimony, as evidenced by his deposition
transcript (See Exhibit A), would be brief and primarily consist of him pleading the fifth.
Therefore, counsel for Third-Party Defendant, Chrystler Stortz’s burden would be limited
to one final brief court appearance with limited time and effort dedicated tot hat
undertaking.
7. Severing the trial would not prejudice the remaining parties. They would
still be able to proceed to trial on their claims and cross-examine Mr.Strotz. Severance
would not only address counsel for Third-Party Defendant, Chrystler Stortz’s motion to
withdraw, it would remedy the request for an adjournment and also be in the interests of
justice and judicial economy, as it would allow Defendant Strotz to have a fair trial while
also allowing the remaining parties to proceed to trial on their claims.
8. Defendant West Seneca CSD further asserts that the timing of pending
motions, particularly the motions for summary judgment and bifurcation justifies
postponing the trial. However, it is important to note that counsel did not express any
objections or reservations when the Court established the trial date and motion schedule.
Requesting an adjournment based on timeline considerations at this juncture is not only
belated, but also prejudicial to the interests of all parties involved. The Court
meticulously designed the subject schedule with input from all parties to ensure a fair,
efficient, and orderly process for all involved. Deviating from these established
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schedules, especially without compelling reasons, is highly prejudicial and negatively
impacts the equitable administration of justice.
9. Counsel's further contention that delaying the trial might aid meaningful
exploration of settlement options is equally without merit. Ample time has already been
available and will continue to be available to engage in settlement discussions.
Furthermore, the insurance carrier for Defendant West Seneca CSD has already fully
assessed the case, established settlement reserves, and even participated in mediation.
Delaying the trial, will not alter or affect those facts. On the contrary, granting an
adjournment would only serve to prolong the process, potentially hindering rather than
facilitating the prospect of reaching a settlement. Also, as is true in every trial, parties can
engage in settlement discussions concurrently, while a trial proceeds.
10. Defendant West Seneca CSD next asserts that trial authorizations are
outstanding without mentioning that these authorizations were just recently requested.
Nevertheless, those authorizations were provided to counsel on 11/8/2023.
11. Lastly, Defendant West Seneca CSD asserts that "a short delay of a few
months will not prejudice the Plaintiff, especially since discovery in this matter was
conducted expeditiously." Once again, it is crucial to note that counsel did not raise any
objections or concerns about the discovery schedule. In fact, he was in full agreement
with it. He had ample time to thoroughly review all materials obtained through the
discovery process and actively participated in all depositions. A delay of a few months
will indeed harm the Plaintiff. The Plaintiff has started the mental and physical
preparations required for trial. Further postponement will only prolong the anxiety and
apprehension that trial can inflict upon an individual. It is fundamentally unfair to the
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Plaintiff and against the interests of justice to extend this matter any longer.
CROSS-MOTION TO SEVER
12. NY CPLR §603 states: “In furtherance of convenience or to avoid
prejudice the Court may order a severance of claims, or may order a separate trial of any
claim, or of any separate issue. The Court may order the trial of any claim or issue prior
to the trial of the others.”
13. Pursuant to CPLR § 603, the Court may order a severance of claims in
order to avoid confusion, delay, or prejudice. Ohadi v. Magnetic Constr. Grp. Corp.,
2022 N.Y. Slip Op. 33824 (N.Y. Sup. Ct. 2022). Severance in this matter would avoid all
three.
14. Further, the determination as to whether to order severance is a matter of
judicial discretion (see Miller v Howard, 137 AD3d 1698, 1699 [4th Dept 2016]; Global
Imports Outlet, Inc. v Signature Group, LLC, 85 AD3d 662, 662 [1st Dept 2011];
Finning v Niagara Mohawk Power Corp., 281 AD2d 844, 844 [3d Dept 2001]).
Avoid Confusion and Prejudice
15. Severance would certainly avoid confusion at trial and avoid an
inconsistent verdict.
16. Here, the Third-Party Summons and Complaint filed against Defendants
Chrystler Stortz, Michael James Stortz, and Heather R. Thibeault present separate and
distinct causes of action from those of the Plaintiffs (See Defendant West Seneca CSD’s
Third-Party Summons and Complaint attached as Exhibit B). The Defendant West
Seneca CSD’s Third-Party Summons and Complaint asserts that Defendant Chrystler
Stortz was negligent in initiating unwanted and unexpected physical contact with
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Plaintiff, while Michael James Stortz and Heather R. Thibeault were negligent in failing
to alert both the general public and Defendant West Seneca CSD about the potential
hazard posed by Defendant Chrystler Stortz.
17. Conversely, the Plaintiffs assert entirely different causes of action, alleging
that the West Seneca CSD Defendants were negligent, reckless, and careless in a separate
and distinct context (See the Supplemental Verified Bill of Particulars attached as Exhibit
C) as follows:
➢ In having knowledge, and actual and constructive notice of prior similar sexual
conduct at or near the area where the subject incident occurred, to wit, an incident
that occurred on the ground floor of the school known to the Defendants as the
“basement” of the school on or about April 10, 2015, involving former students
D.B. and J.O., whereby J.O. was sexually assaulted by D.B., and engaged in
conduct that was sexual, disruptive, insubordinate or disorderly, said conduct
endangered the safety, morals, health or welfare of others;
➢ In having knowledge, and actual and constructive notice of prior similar sexual
conduct at the exact same place or near the area where the subject incident
occurred, to wit, an incident that occurred on the ground floor of the school
known to the Defendants as the “basement” of the school on or about April 5,
2019, involving former students D.A.R. and G.A.M., whereby both students were
engaged in a sexual act on school grounds, and engaged in sexual, disruptive,
insubordinate or disorderly, conduct and engaged in conduct that endangered the
safety, morals, health or welfare of others;
➢ In that Defendants could have reasonably anticipated an incident like the
Plaintiff’s occurring having had knowledge, and actual and constructive notice of
prior similar incidents that were sexual, disruptive, insubordinate and/or
disorderly and endangered the safety, morals, health or welfare of others,
including without limitation the Plaintiff;
➢ In that Defendants could have reasonably anticipated an incident like the
Plaintiff’s occurring in that they failed to correct the subject conditions, which
allowed students to occupy, linger, conceal themselves in, and loiter in the subject
area to engage in sexual, disruptive, insubordinate and/or disorderly conduct that
endangered the safety, morals, health or welfare of others, including without
limitation the Plaintiff;
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➢ In that Defendants could have reasonably anticipated an incident like the
Plaintiff’s occurring in that they continued to allow students to access the ground
floor of the school known to the Defendants as the “basement” of the school, in
and around the area where the subject incident occurred, without any supervision,
control and/or monitoring by Defendants;
➢ In that supervision by the School Defendants could have prevented the subject
incident given that the Defendants had knowledge, along with actual and
constructive notice of prior similar incidents that occurred on the ground floor of
the school known to the Defendants as the “basement” of the school that were
sexual, disruptive, insubordinate and/or disorderly, incidents that endangered the
safety, morals, health or welfare of others, including without limitation the
Plaintiffs;
➢ In that the School Defendants could have prevented the subject incident following
the prior similar incidents by: installing cameras and other surveillance in and
around the area where the subject incident and other prior incidents occurred;
having teachers, faculty, staff or security personnel monitor the area in and around
where the incident and prior incidents occurred; installing a barrier to keep
students out of the area where the subject incident occurred; and having other
protections and safeguards in place;
➢ In permitting a sexually depraved environment and an environment that allowed
sexual abuse to persist in the Defendants’ subject school and/or in the Defendants’
school district in that there was a pattern and practice of permitting such an
environment to persist under Defendants’ supervision, as evidenced by:
○ In 2007, Anthony Harper, a teacher at East Middle charged with sexual
abuse of a 13-year-old boy, and a second incident involving Mr. Harper
emerged in 2020;
○ In 2012, West Seneca substitute teacher Timothy Bek being sentenced to
thirty (30) years in prison for child pornography involving students;
○ In 2016, male students at West High School took nude photos of female
students, put them in a DropBox account and tried to sell the password to
other students; and
○ In 2019, David Calaiacovo, a retired school psychologist in the West
Seneca schools, was charged with possession of child pornography (The
61-year-old possessed and received sexually explicit images of minors,
some as young as 3 years old); and
➢ Having had knowledge, and actual and constructive notice of the incidents
involving DropBox, Harper, Bek and Calaiacovo, failing to take any measures
and/or precautions to prevent future incidents of sexual misconduct on school
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grounds and in the District and permitting a rampant sexually depraved
enviroment and an enviroment that allowed sexual abuse in the Defendants’
subject school and/or in the Defendants’ school district to persist, all of which was
a substantial factor in bringing about the Plaintiff’s injuries.
18. Although the facts of this incident involve each Defendant, the legal
obligations and principles applicable to each Defendant remain separate and distinct. As
stated in Miller v. Howard (137 AD3d 1698 at 1699), even when there is some overlap in
the evidence, severance is appropriate when individual issues dominate, stemming from
unique circumstances that pertain to each Defendant, potentially leading to juror
confusion.
19. Combining these cases not only complicates the verdict sheet but also
results in an excessively lengthy and intricate jury charge. This situation significantly
heightens the risk of juror confusion and an inconsistent verdict. Given the distinct issues,
allegations, and causes of action, it is imperative to sever these matters. Severing in the
interest of justice is necessary to prevent the anticipated confusion and prejudice
stemming from the complexity of this case.
20. The standard verdict sheet cannot adequately address the apportionment of
negligence, as the causes of action and areas of law are inherently separate and distinct.
Trying these cases together would essentially create a trial within a trial, which would
prejudice all parties and inevitably lead to juror confusion. For instance, no duty exists
between Third-Party Defendants Chrystler Stortz, Michael James Stortz, and Heather R.
Thibeault and the Plaintiffs under the separate and distinct causes of action listed in
paragraph 13 above. Explaining and remedying this to a jury would be a formidable
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challenge. This example is just one of many, and trying these cases together would
magnify these complexities. Severance would effectively circumvent these issues,
prevent confusion, and ensure a consistent verdict.
21. Furthermore, with a severed trial, Defendant West Seneca CSD's ability to
pursue contribution from the Third-Party Defendants is completely protected. In fact,
none of Defendant West Seneca CSD's rights would be compromised. Instead, they
would be fully safeguarded through the granting of a severed trial.
Avoid Delay
22. Mr. Dingleday has asserted that delaying the trial is required due to
matters regarding counsel for the Third-Party Defendant, Chrystler Stortz. Severance
would cure those issues. Pursuant to CPLR § 603, the Court may order a severance of
claims to avoid such delay. Ohadi v. Magnetic Constr. Grp. Corp., 2022 N.Y. Slip Op.
33824 (N.Y. Sup. Ct. 2022).
23. Severing this trial would effectively address Mr. Dingleday's concerns
regarding Third-Party Defendant, Chrystler Stortz. Plaintiff invites the Defendant and
Third-Party Defendants to join in our request to separate the trials. This approach would
not only alleviate the need for a trial adjournment but also streamline the proceedings,
thereby reducing the risk of juror confusion and aiding Mr. Dingleday in trial preparation.
WHEREFORE, Plaintiff requests that Defendant’s motion for a trial adjournment be
denied and that Plaintiff’s motion for severance for the purpose of trial be granted together with
any other relief the Court deems just and proper.
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DATED: August 8, 2023
Buffalo, New York
CANTOR, WOLFF, NICASTRO & HALL
/s/ Rich Hall, Esq.
___________________________________
Rich Hall, Esq.
Attorneys for Plaintiffs
350 Main Street, Suite 2140
Buffalo, New York 14202
(716) 848-8000
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EXHIBIT A
FILED: ERIE COUNTY CLERK 11/09/2023 01:06
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124 RECEIVED NYSCEF: 11/09/2023
CHRYSTLER STORTZ
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
----------------------------------------------------
N.J.S., an Infant, by and through her
Parent and Natural Guardian,
MICHELE SARDO and
MICHELE SARDO, Individually,
Plaintiffs,
-vs-
WEST SENECA CENTRAL SCHOOL DISTRICT,
WEST SENECA CENTRAL SCHOOL DISTRICT
BOARD OF EDUCATION and
WEST SENIOR HIGH SCHOOL,
Defendants.
----------------------------------------------------
WEST SENECA CENTRAL SCHOOL DISTRICT,
WEST SENECA CENTRAL SCHOOL DISTRICT
BOARD OF EDUCATION and
WEST SENIOR HIGH SCHOOL,
Third-Party Plaintiffs,
-vs-
CHRYSTLER LEE STORTZ,
MICHAEL JAMES STORTZ,
BARBARA ANNE STORTZ and
HEATHER A. THIBEAULT
a/k/a HEATHER A. STORTZ,
Third-Party Defendants.
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Examination Before Trial of
CHRYSTLER STORTZ, Third-Party Defendant, taken pursuant to
Notice under Article 31 of the Civil Practice Law and Rules,
in the law offices of LIPSITZ GREEN SCIME CAMBRIA LLP, 42
Delaware Avenue, Suite 120, Buffalo, New York, taken on May
30, 2023, commencing at 1:54 P.M., before VALERIE A. ROSATI,
Notary Public.
Sue Ann Simonin Court Reporting
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1 INDEX TO WITNESSES
2
3
4 Witness: CHRYSTLER STORTZ Page
5 Examination By:
6 Mr. Dingeldey 6
7 Mr. Lent 39
8 Mr. Nicastro 44
9 Mr. Lent 53
10 Mr. Nicastro 54
11 Mr. Dingeldey 56
12
13
14
15
16
17
18
19
20
21
22
23
Sue Ann Simonin Court Reporting
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1 A P P E A R A N C E S:
2 C A N T O R, W O L F F, N I C A S T R O & H A L L L L C ,
B y J O S E P H L . N I C A S T R O, E S Q . ,
3 2 1 4 0 M a i n P l a c e T o w e r,
3 5 0 M a i n S t r e e t,
4 B u f f a l o, N e w Y o r k 1 4 2 0 2,
A p p e a r i n g f o r t h e P l a i n t i f f s.
5
B A X T E R & S M I T H, P . C . ,
6 By LOUIS B. DINGELDEY JR., ESQ.,
1 8 2 D w y e r S t r e e t,
7 W e s t S e n e c a, N e w Y o r k 1 4 2 2 4,
Appearing for Defendants and
8 T h i r d- P a r t y P l a i n t i f f s.
9 LIPSITZ GREEN SCIME CAMBRIA LLP,
B y G R E G O R Y P . K R U L L, E S Q . ,
10 4 2 D e l a w a r e A v e n u e,
Suite 120,
11 B u f f a l o, N e w Y o r k 1 4 2 0 2- 3 9 2 4,
A p p e a r i n g f o r T h i r d- P a r t y D e f e n d a n t
12 C h r y s t l e r L e e S t o r z.
13 M A R S H A L L D E N N E H E Y W A R N E R C O L E M A N & G O G G I N, P . C . ,
B y T H O M A S M . L E N T, E S Q . ,
14 7 1 7 S t a t e S t r e e t,
Suite 701,
15 E r i e, P e n n s y l v a n i a 1 6 5 0 1,
A p p e a r i n g f o r T h i r d- P a r t y D e f e n d a n t
16 Heather A. Thibeault a/k/a
H e a t h e r A . S t o r t z.
17
18
19 (The following stipulations were entered
20 i n t o b y a l l p a r t i e s. )
21 It is hereby stipulated by and between counsel
22 for the respective parties that the oath of the
23 R e f e r e e i s w a i v e d, t h a t f i l i n g a n d c e r t i f i c a t i o n
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5
1 o f t h e t r a n s c r i p t a r e w a i v e d, a n d t h a t a l l
2 o b j e c t i o n s, e x c e p t a s t o t h e f o r m o f t h e
3 q u e s t i o n s, a r e r e s e r v e d u n t i l t h e t i m e o f t r i a l.
4
5 M R . K R U L L: I ' l l r e a d a n d s i g n. If we don't, you
6 k n o w, p r o v i d e i t w i t h i n s i x t y d a y s t h e n i t ' s
7 d e e m e d a c c e p t e d.
8
9 C H R Y S T L E R S T O R T Z,
10 5 6 S t e n z i l S t r e e t, N o r t h T o n a w a n d a, N e w Y o r k 1 4 1 2 0,
11 a f t e r b e i n g d u l y c a l l e d a n d s w o r n,
12 t e s t i f i e d a s f o l l o w s:
13
14 M R . K R U L L: B e f o r e w e s t a r t, I j u s t w a n t t o p u t o n
15 t h e r e c o r d. I ' m r e p r e s e n t i n g T h i r d- P a r t y
16 D e f e n d a n t C h r y s t l e r S t o r t z, a n d I ' v e s p o k e n w i t h
17 counsel last week about the extent to which Mr.
18 Stortz can or can't answer questions relative to
19 s p e c i f i c e v e n t s a l l e g ed i n t h e s u i t. And I've
20 advised counsel beforehand that relative to the
21 s p e c i f i c s o f t h e i n c i d e n t, h e h a s b e e n a d v i s e d t o
22 p l e a d t h e F i f t h a g a i n s t s e l f- i n c r i m i n a t i o n i n
23 reference to potential federal liability criminal
Sue Ann Simonin Court Reporting
FILED: ERIE COUNTY CLERK 11/09/2023 01:06
12:44 PM INDEX NO. 805265/2020
NYSCEF DOC. NO. 129
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1 s t a t u t es .
2 I w i l l s a y t h a t t h e T h i r d- P a r t y C o m p l a i n t
3 was answered where various allegations were
4 responded to this way. A n d t h e a n s w e r, p a r a g r a p h
5 t w o , q u o t e, w i t h r e s p e c t t o t h e a l l e g a t i o n s
6 n u m b e r e d e i g h t a n d n i n e, D e f e n d a n t a d m i t s t h a t o n
7 July 22, 2019 he pled guilty to engaging in
8 sexual intercourse and oral sexual conduct with
9 N.J.S. on May 10, 2019 without her consent as set
10 forth in Penal Law Section 130 point 20, sub 1
11 and 2.
12 Defendant denies the remainder of the
13 allegations if the same call for legal
14 c o n c l u s i o n s. To the extent these allegations do
15 n o t c a l l f o r a l e g a l c o n c l u s i o n, D e f e n d a n t d e n i e s
16 k n o w l e d g e o r i n f o r m a t i o n a s t o s a m e, c l o s e q u o t e.
17 S o w i t h t h a t, w e ' l l a d v i s e M r . S t o r t z o n a I
18 g u e s s q u e s t i o n- b y - q u e s t i o n b a s i s.
19
20 E X A M I N A T I O N B Y M R . D I N G E L D E Y:
21
22 Q. O k a y. G o o d a f t e r n o o n. Do you prefer I call you
23 C h r y s t l e r o r M r . S t o r t z?
Sue Ann Simonin Court Reporting
FILED: ERIE COUNTY CLERK 11/09/2023 01:06
12:44 PM INDEX NO. 805265/2020
NYSCEF DOC. NO. 129
124 RECEIVED NYSCEF: 11/09/2023
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1 A. M r . S t o r t z i s f i n e.
2 Q. O k a y. M r . S t o r t z, w e m e t b r i e f l y o f f t h e r e c o r d.
3 M y n a m e i s L o u D i n g e l d e y. I'm the attorney for
4 t h e W e s t S e n e c a C e n t r a l S c h o o l D i s t r i c t, a n d I ' m
5 here to ask you some questions about some
6 allegations that have been made about conduct
7 f r o m A p r i l a n d M a y o f 2 0 1 9, a s w e l l a s a l i t t l e
8 bit of background information and some of the
9 criminal related matters that may have followed
10 t h e s e i n c i d e n t s. O k a y?
11 A. O k a y.
12 M R . D I N G E L D E Y: Let me just -- I'm going to ask the
13 w i t n e s s f o r h i s d a t e o f b i r t h. We can redact it
14 so that the last two digits of the year are
15 s h o w n.
16 So I'm not going to have your whole date
17 w r i t t e n d o w n, b u t y o u c a n t e l l m e .
18 T H E W I T N E S S: ( R e d a c t e d) 2 0 0 2.
19 B Y M R . D I N G E L D E Y:
20 Q. O k a y. Y o u k n o w w h a t, b e f o r e w e g e t s t a r te d , I
21 s h o u l d j u s t k i n d o f g o o v e r s o m e g r o u n d r u l e s.
22 B e c a u s e o u r c o n v e r s a t i o n i s b e i n g r e c o r d e d, j u s t
23 do your best -- and you're off to a fine start --
Sue Ann Simonin Court Reporting
FILED: ERIE COUNTY CLERK 11/09/2023 01:06
12:44 PM INDEX NO. 805265/2020
NYSCEF DOC. NO. 129
124 RECEIVED NYSCEF: 11/09/2023
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1 t o l e t m e f i n i s h b e f o r e y o u a n s w e r. That way you
2 g e t t o h e a r t h e w h o l e q u e s t i o n. And do your best
3 to keep your voice up and give a yes or a no or
4 a n e x p l a n a t i o n. O k a y?
5 A. (Indicating yes.)
6 Q. Is that a yes?
7 A. Yes.
8 Q. A l l r i g h t. And if you don't understand any of my
9 q u e s t i o ns o r y o u c a n ' t h e a r m e , I ' m n o t b e i n g
10 l o u d e n o u g h, t h e r e' s a f a n , s o m e o n e i s c o u g hi n g ,
11 let me know and I'll repeat or rephrase the
12 question for you. O k a y?
13 A. U n d e r s t o o d.
14 Q. We may jump around a little bit. If we do that
15 and you become uncertain as to the time frame of
16 t h e q u e s t i o n, w h e t h e r I m e a n t o d a y o r I m e a n f o u r
17 y e a r s a g o , l e t m e k n o w a n d I ' l l c l a r i f y. O k a y?
18 A. U n d e r s t o o d.
19 Q. A n d , l a s t l y, t r y t o b e p a t i e n t. Let me finish
20 before you answer and I'll try to give you the
21 s a m e c o u r t e s y. That way you get to hear the
22 w h o l e q u e s t i o n a n d w e ' r e n o t t a l ki n g o v e r e a c h
23 o t h e r, a n d t h e c o u r t r e p o r t e r c a n t a k e a n i c e,
Sue Ann Simonin Court Reporting
FILED: ERIE COUNTY CLERK 11/09/2023 01:06
12:44 PM INDEX NO. 805265/2020
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124 RECEIVED NYSCEF: 11/09/2023
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1 clean and accurate transcription of our
2 d i s c u s s i o n. O k a y?
3 A. O k a y.
4 Q. A l l r i g h t. You gave an address of 56 Stenzil
5 S t r e e t i n N o r t h T o n a w a n d a. Is that an apartment
6 o r a h o u s e?
7 A. H o u s e.
8 Q. A n d d o y o u o w n o r r e n t?
9 A. R e n t.
10 Q. H o w l o n g h a v e y o u l i v e d t h e r e?
11 A. T h r e e m o n t h s.
12 Q. D o y o u l i v e w i t h a n y o n e?
13 A. M y m o t h e r a n d s i s t e r.
14 Q. I s y o u r m o t h e r H e a t h e r T h i b e a u l t?
15 A. Yes.
16 Q. A n d w h o i s y o u r s i s t e r?
17 A. H e i d i P e t e r s o n.
18 M R . N I C A S T R O: W h a t w a s t h a t n a m e? I c o u l d n' t h e a r.
19 M R . D I N G E L D E Y: P e t e r s o n. H e i d i P e t e r s o n.
20 M R . N I C A S T R O: Gotcha.
21 B Y M R . D I N G E L D E Y:
22 Q. B a c k i n a p p r o x i m a t e l y A p r i l a n d M a y o f 2 0 1 9,
23 w h e r e d i d y o u l i v e?
Sue Ann Simonin Court Reporting
FILED: ERIE COUNTY CLERK 11/09/2023 01:06
12:44 PM INDEX NO. 805265/2020
NYSCEF DOC. NO. 129
124 RECEIVED NYSCEF: 11/09/2023
10
1 A. 2 4 B a r n s d a l e A v e n u e.
2 Q. T h a t' s i n W e s t S e n e c a?
3 A. Yes.
4 Q. T h
Preview
FILED: ERIE COUNTY CLERK 11/09/2023 01:06 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/09/2023 EXHIBIT A FILED: ERIE COUNTY CLERK 11/09/2023 01:06 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 122 RECEIVED NYSCEF: 11/09/2023 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE _________________________________________ N.J.S., an infant, by and through his NOTICE OF CROSS-MOTION Parent, and Natural Guardian, MICHELE SARDO, and MICHELE SARDO, Individually, Index No.: 805265/2020 Plaintiff, -vs.- WEST SENECA CENTRAL SCHOOL DISTRICT WEST SENECA CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION WEST SENIOR HIGH SCHOOL, Defendants. ___________________________________________ WEST SENECA CENTRAL SCHOOL DISTRICT WEST SENECA CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION WEST SENIOR HIGH SCHOOL, Third-Party Plaintiffs -vs- CHRYSTLER LEE STORTS, MICHAEL JAMES STORTZ BARBARA ANNE STORTZ, and HEATHER THIBEALT a/k/a HEATHER A. STORTZ, Third-Party Defendants ____________________________________________ DATE, TIME & PLACE November 22, 2023 at 9:30 a.m., or as soon OF THE HEARING: thereafter as counsel may be heard before Hon. Dennis E. Ward, J.S.C., at Special Term of the Erie County Supreme Court, 25 Delaware Avenue, Part 12, Buffalo, New Yrk 14202 1 1 of 3 FILED: ERIE COUNTY CLERK 11/09/2023 01:06 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 122 RECEIVED NYSCEF: 11/09/2023 SUPPORTING PAPERS: Affidavit of Rich Hall, Esq., sworn to on March 21, 2023, with Exhibits attached thereto, and all pleadings and proceedings before. RELIEF DEMANDED AND GROUNDS THEREFORE: An Order denying Defendant’s motion to adjunre the subject trial and an Orderrpursuant to CPLR 603, to sever the Action, together with such other and further relief as the Court deems just and proper. TYPE OF ACTION: The above-entitled action is for personal injury. ANSWERING AFFIDAVITS: Any and all answering papers and Memorandum of Law shall be served upon the undersigned at least 7 days prior to the return date of this motion as required by CPLR 2214(b) and 22 NYCRR 202.8(c). ORAL ARGUMENT: Requested. DATED: November 8, 2023 Buffalo, New York CANTOR, WOLFF, NICASTRO & HALL /s/ Ric Hal , Esq. _________________________________________ Rich Hall, Esq. Attorneys for Plaintiffs 350 Main Street, Suite 2140 Buffalo, New York 14202 (716) 848-8000 TO: Louis B. Dingeldey, Esq. BAXTER SMITH & SHAPIRO, P.C. Attorneys for Defendants/Third-Party Plaintiffs 182 Dwyer Street West Seneca, New York 14224 (716) 854-6140 2 2 of 3 FILED: ERIE COUNTY CLERK 11/09/2023 01:06 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 122 RECEIVED NYSCEF: 11/09/2023 CC: Thomas Lent, Esq. MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN Attorneys for Third-Party Defendant Heather A. Thibealt a/k/a Heather A. Stortz 717 State Street, Suite 701 Erie, Pennsylvania 16501 (814) 480-7800 Gregory P. Krull, Esq. LIPSITZ GREEN SCIME CAMBRIA LLP Attorneys for Third-Party Defendant Chrystler Lee Stortz 42 Delaware Avenue, Suite 120 Buffalo, New York 14202 (716) 849-1333 Kristine Celeste, Esq. DUKE HOLZMAN PHOTIADIS & GRESENS LLP 701 Seneca Street, Suite 750 Buffalo, New York 14210 (716) 855-1111 3 3 of 3 FILED: ERIE COUNTY CLERK 11/09/2023 01:06 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/09/2023 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE _________________________________________ N.J.S., an infant, by and through his ATTORNEY AFFIRMATION Parent, and Natural Guardian, MICHELE SARDO, and MICHELE SARDO, Individually, Index No.: 805265/2020 Plaintiff, -vs.- WEST SENECA CENTRAL SCHOOL DISTRICT WEST SENECA CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION WEST SENIOR HIGH SCHOOL, Defendants. ___________________________________________ WEST SENECA CENTRAL SCHOOL DISTRICT WEST SENECA CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION WEST SENIOR HIGH SCHOOL, Third-Party Plaintiffs -vs- CHRYSTLER LEE STORTS, MICHAEL JAMES STORTZ BARBARA ANNE STORTZ, and HEATHER THIBEALT a/k/a HEATHER A. STORTZ, Third-Party Defendants ____________________________________________ Richard A. Hall. Esq., states the following under penalty of perjury pursuant to CPLR 2106: 1. I am an attorney at law duly licensed to practice in the State of New York and am a partner with the Law Office of Cantor, Wolff, Nicastro & Hall, LLC, counsel 1 FILED: ERIE COUNTY CLERK 11/09/2023 01:06 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/09/2023 for Plaintiffs, in this action As such, I am fully familiar with the facts and circumstances of this matter. 2. I respectfully submit this Affirmation in opposition to Defendant West Seneca Central School District’s (hereinafterWest Seneca CSD) Motion which seeks an Order granting an adjournment of the upcoming trial and in support of the Plaintiffs’ Cross Motion to sever and separate the trial of the Plaintiff and Defendant from the trial of any matter between the Third-Party Plaintiff and Third-Party Defendant. 3. Defendant West Seneca CSD’s Motion should be denied. None of the concerns raised by Defendant West Seneca CSD to support the request for an adjournment substantiate the need for a trial delay. Granting such an adjournment will significantly disrupt the timely progression of proceedings and adversely affect the interests of all parties involved, in particular, the victim of the rape at the heart of this matter. 4. First, Defendant West Seneca CSD asserts that an adjournment is required due to a pending motion by counsel for Third-Party Defendant, Chrystler Stortz, to withdraw as counsel. This point assumes, I believe incorrectly, that the Court will grant that motion. Assuming that the motion is denied, Mr. Stortz will have representation at trial. As discussed in more detail below, this assertion is further obviated by the Court granting Plaintiff’s Cross-Motion to sever and separate this trial. Severing this trial will remove Defendant West Seneca CSD’s concerns regarding the representation of Mr. Stortz. 5. In a severed trial, Third-Party Defendant Strotz would not need to appear for the duration of the trial, nor would counsel for Mr.Stortz. Counsel for Third-Party 2 FILED: ERIE COUNTY CLERK 11/09/2023 01:06 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/09/2023 Defendant, Chrystler Stortz would only need to appear on the one occasion that Defendant Strotz testifies. After the severed trial, Mr. Strotz would have ample time to find new counsel. Severance would allow the trial to proceed while relieving opposing counsel of their various concerns and burdens. 6. Furthermore, Mr. Stortz's testimony, as evidenced by his deposition transcript (See Exhibit A), would be brief and primarily consist of him pleading the fifth. Therefore, counsel for Third-Party Defendant, Chrystler Stortz’s burden would be limited to one final brief court appearance with limited time and effort dedicated tot hat undertaking. 7. Severing the trial would not prejudice the remaining parties. They would still be able to proceed to trial on their claims and cross-examine Mr.Strotz. Severance would not only address counsel for Third-Party Defendant, Chrystler Stortz’s motion to withdraw, it would remedy the request for an adjournment and also be in the interests of justice and judicial economy, as it would allow Defendant Strotz to have a fair trial while also allowing the remaining parties to proceed to trial on their claims. 8. Defendant West Seneca CSD further asserts that the timing of pending motions, particularly the motions for summary judgment and bifurcation justifies postponing the trial. However, it is important to note that counsel did not express any objections or reservations when the Court established the trial date and motion schedule. Requesting an adjournment based on timeline considerations at this juncture is not only belated, but also prejudicial to the interests of all parties involved. The Court meticulously designed the subject schedule with input from all parties to ensure a fair, efficient, and orderly process for all involved. Deviating from these established 3 FILED: ERIE COUNTY CLERK 11/09/2023 01:06 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/09/2023 schedules, especially without compelling reasons, is highly prejudicial and negatively impacts the equitable administration of justice. 9. Counsel's further contention that delaying the trial might aid meaningful exploration of settlement options is equally without merit. Ample time has already been available and will continue to be available to engage in settlement discussions. Furthermore, the insurance carrier for Defendant West Seneca CSD has already fully assessed the case, established settlement reserves, and even participated in mediation. Delaying the trial, will not alter or affect those facts. On the contrary, granting an adjournment would only serve to prolong the process, potentially hindering rather than facilitating the prospect of reaching a settlement. Also, as is true in every trial, parties can engage in settlement discussions concurrently, while a trial proceeds. 10. Defendant West Seneca CSD next asserts that trial authorizations are outstanding without mentioning that these authorizations were just recently requested. Nevertheless, those authorizations were provided to counsel on 11/8/2023. 11. Lastly, Defendant West Seneca CSD asserts that "a short delay of a few months will not prejudice the Plaintiff, especially since discovery in this matter was conducted expeditiously." Once again, it is crucial to note that counsel did not raise any objections or concerns about the discovery schedule. In fact, he was in full agreement with it. He had ample time to thoroughly review all materials obtained through the discovery process and actively participated in all depositions. A delay of a few months will indeed harm the Plaintiff. The Plaintiff has started the mental and physical preparations required for trial. Further postponement will only prolong the anxiety and apprehension that trial can inflict upon an individual. It is fundamentally unfair to the 4 FILED: ERIE COUNTY CLERK 11/09/2023 01:06 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/09/2023 Plaintiff and against the interests of justice to extend this matter any longer. CROSS-MOTION TO SEVER 12. NY CPLR §603 states: “In furtherance of convenience or to avoid prejudice the Court may order a severance of claims, or may order a separate trial of any claim, or of any separate issue. The Court may order the trial of any claim or issue prior to the trial of the others.” 13. Pursuant to CPLR § 603, the Court may order a severance of claims in order to avoid confusion, delay, or prejudice. Ohadi v. Magnetic Constr. Grp. Corp., 2022 N.Y. Slip Op. 33824 (N.Y. Sup. Ct. 2022). Severance in this matter would avoid all three. 14. Further, the determination as to whether to order severance is a matter of judicial discretion (see Miller v Howard, 137 AD3d 1698, 1699 [4th Dept 2016]; Global Imports Outlet, Inc. v Signature Group, LLC, 85 AD3d 662, 662 [1st Dept 2011]; Finning v Niagara Mohawk Power Corp., 281 AD2d 844, 844 [3d Dept 2001]). Avoid Confusion and Prejudice 15. Severance would certainly avoid confusion at trial and avoid an inconsistent verdict. 16. Here, the Third-Party Summons and Complaint filed against Defendants Chrystler Stortz, Michael James Stortz, and Heather R. Thibeault present separate and distinct causes of action from those of the Plaintiffs (See Defendant West Seneca CSD’s Third-Party Summons and Complaint attached as Exhibit B). The Defendant West Seneca CSD’s Third-Party Summons and Complaint asserts that Defendant Chrystler Stortz was negligent in initiating unwanted and unexpected physical contact with 5 FILED: ERIE COUNTY CLERK 11/09/2023 01:06 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/09/2023 Plaintiff, while Michael James Stortz and Heather R. Thibeault were negligent in failing to alert both the general public and Defendant West Seneca CSD about the potential hazard posed by Defendant Chrystler Stortz. 17. Conversely, the Plaintiffs assert entirely different causes of action, alleging that the West Seneca CSD Defendants were negligent, reckless, and careless in a separate and distinct context (See the Supplemental Verified Bill of Particulars attached as Exhibit C) as follows: ➢ In having knowledge, and actual and constructive notice of prior similar sexual conduct at or near the area where the subject incident occurred, to wit, an incident that occurred on the ground floor of the school known to the Defendants as the “basement” of the school on or about April 10, 2015, involving former students D.B. and J.O., whereby J.O. was sexually assaulted by D.B., and engaged in conduct that was sexual, disruptive, insubordinate or disorderly, said conduct endangered the safety, morals, health or welfare of others; ➢ In having knowledge, and actual and constructive notice of prior similar sexual conduct at the exact same place or near the area where the subject incident occurred, to wit, an incident that occurred on the ground floor of the school known to the Defendants as the “basement” of the school on or about April 5, 2019, involving former students D.A.R. and G.A.M., whereby both students were engaged in a sexual act on school grounds, and engaged in sexual, disruptive, insubordinate or disorderly, conduct and engaged in conduct that endangered the safety, morals, health or welfare of others; ➢ In that Defendants could have reasonably anticipated an incident like the Plaintiff’s occurring having had knowledge, and actual and constructive notice of prior similar incidents that were sexual, disruptive, insubordinate and/or disorderly and endangered the safety, morals, health or welfare of others, including without limitation the Plaintiff; ➢ In that Defendants could have reasonably anticipated an incident like the Plaintiff’s occurring in that they failed to correct the subject conditions, which allowed students to occupy, linger, conceal themselves in, and loiter in the subject area to engage in sexual, disruptive, insubordinate and/or disorderly conduct that endangered the safety, morals, health or welfare of others, including without limitation the Plaintiff; 6 FILED: ERIE COUNTY CLERK 11/09/2023 01:06 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/09/2023 ➢ In that Defendants could have reasonably anticipated an incident like the Plaintiff’s occurring in that they continued to allow students to access the ground floor of the school known to the Defendants as the “basement” of the school, in and around the area where the subject incident occurred, without any supervision, control and/or monitoring by Defendants; ➢ In that supervision by the School Defendants could have prevented the subject incident given that the Defendants had knowledge, along with actual and constructive notice of prior similar incidents that occurred on the ground floor of the school known to the Defendants as the “basement” of the school that were sexual, disruptive, insubordinate and/or disorderly, incidents that endangered the safety, morals, health or welfare of others, including without limitation the Plaintiffs; ➢ In that the School Defendants could have prevented the subject incident following the prior similar incidents by: installing cameras and other surveillance in and around the area where the subject incident and other prior incidents occurred; having teachers, faculty, staff or security personnel monitor the area in and around where the incident and prior incidents occurred; installing a barrier to keep students out of the area where the subject incident occurred; and having other protections and safeguards in place; ➢ In permitting a sexually depraved environment and an environment that allowed sexual abuse to persist in the Defendants’ subject school and/or in the Defendants’ school district in that there was a pattern and practice of permitting such an environment to persist under Defendants’ supervision, as evidenced by: ○ In 2007, Anthony Harper, a teacher at East Middle charged with sexual abuse of a 13-year-old boy, and a second incident involving Mr. Harper emerged in 2020; ○ In 2012, West Seneca substitute teacher Timothy Bek being sentenced to thirty (30) years in prison for child pornography involving students; ○ In 2016, male students at West High School took nude photos of female students, put them in a DropBox account and tried to sell the password to other students; and ○ In 2019, David Calaiacovo, a retired school psychologist in the West Seneca schools, was charged with possession of child pornography (The 61-year-old possessed and received sexually explicit images of minors, some as young as 3 years old); and ➢ Having had knowledge, and actual and constructive notice of the incidents involving DropBox, Harper, Bek and Calaiacovo, failing to take any measures and/or precautions to prevent future incidents of sexual misconduct on school 7 FILED: ERIE COUNTY CLERK 11/09/2023 01:06 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/09/2023 grounds and in the District and permitting a rampant sexually depraved enviroment and an enviroment that allowed sexual abuse in the Defendants’ subject school and/or in the Defendants’ school district to persist, all of which was a substantial factor in bringing about the Plaintiff’s injuries. 18. Although the facts of this incident involve each Defendant, the legal obligations and principles applicable to each Defendant remain separate and distinct. As stated in Miller v. Howard (137 AD3d 1698 at 1699), even when there is some overlap in the evidence, severance is appropriate when individual issues dominate, stemming from unique circumstances that pertain to each Defendant, potentially leading to juror confusion. 19. Combining these cases not only complicates the verdict sheet but also results in an excessively lengthy and intricate jury charge. This situation significantly heightens the risk of juror confusion and an inconsistent verdict. Given the distinct issues, allegations, and causes of action, it is imperative to sever these matters. Severing in the interest of justice is necessary to prevent the anticipated confusion and prejudice stemming from the complexity of this case. 20. The standard verdict sheet cannot adequately address the apportionment of negligence, as the causes of action and areas of law are inherently separate and distinct. Trying these cases together would essentially create a trial within a trial, which would prejudice all parties and inevitably lead to juror confusion. For instance, no duty exists between Third-Party Defendants Chrystler Stortz, Michael James Stortz, and Heather R. Thibeault and the Plaintiffs under the separate and distinct causes of action listed in paragraph 13 above. Explaining and remedying this to a jury would be a formidable 8 FILED: ERIE COUNTY CLERK 11/09/2023 01:06 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/09/2023 challenge. This example is just one of many, and trying these cases together would magnify these complexities. Severance would effectively circumvent these issues, prevent confusion, and ensure a consistent verdict. 21. Furthermore, with a severed trial, Defendant West Seneca CSD's ability to pursue contribution from the Third-Party Defendants is completely protected. In fact, none of Defendant West Seneca CSD's rights would be compromised. Instead, they would be fully safeguarded through the granting of a severed trial. Avoid Delay 22. Mr. Dingleday has asserted that delaying the trial is required due to matters regarding counsel for the Third-Party Defendant, Chrystler Stortz. Severance would cure those issues. Pursuant to CPLR § 603, the Court may order a severance of claims to avoid such delay. Ohadi v. Magnetic Constr. Grp. Corp., 2022 N.Y. Slip Op. 33824 (N.Y. Sup. Ct. 2022). 23. Severing this trial would effectively address Mr. Dingleday's concerns regarding Third-Party Defendant, Chrystler Stortz. Plaintiff invites the Defendant and Third-Party Defendants to join in our request to separate the trials. This approach would not only alleviate the need for a trial adjournment but also streamline the proceedings, thereby reducing the risk of juror confusion and aiding Mr. Dingleday in trial preparation. WHEREFORE, Plaintiff requests that Defendant’s motion for a trial adjournment be denied and that Plaintiff’s motion for severance for the purpose of trial be granted together with any other relief the Court deems just and proper. 9 FILED: ERIE COUNTY CLERK 11/09/2023 01:06 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/09/2023 DATED: August 8, 2023 Buffalo, New York CANTOR, WOLFF, NICASTRO & HALL /s/ Rich Hall, Esq. ___________________________________ Rich Hall, Esq. Attorneys for Plaintiffs 350 Main Street, Suite 2140 Buffalo, New York 14202 (716) 848-8000 10 FILED: ERIE COUNTY CLERK 11/09/2023 01:06 12:44 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 124 RECEIVED NYSCEF: 11/09/2023 EXHIBIT A FILED: ERIE COUNTY CLERK 11/09/2023 01:06 12:44 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 124 RECEIVED NYSCEF: 11/09/2023 CHRYSTLER STORTZ STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE ---------------------------------------------------- N.J.S., an Infant, by and through her Parent and Natural Guardian, MICHELE SARDO and MICHELE SARDO, Individually, Plaintiffs, -vs- WEST SENECA CENTRAL SCHOOL DISTRICT, WEST SENECA CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION and WEST SENIOR HIGH SCHOOL, Defendants. ---------------------------------------------------- WEST SENECA CENTRAL SCHOOL DISTRICT, WEST SENECA CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION and WEST SENIOR HIGH SCHOOL, Third-Party Plaintiffs, -vs- CHRYSTLER LEE STORTZ, MICHAEL JAMES STORTZ, BARBARA ANNE STORTZ and HEATHER A. THIBEAULT a/k/a HEATHER A. STORTZ, Third-Party Defendants. FILED: ERIE COUNTY CLERK 11/09/2023 01:06 12:44 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 124 RECEIVED NYSCEF: 11/09/2023 2 Examination Before Trial of CHRYSTLER STORTZ, Third-Party Defendant, taken pursuant to Notice under Article 31 of the Civil Practice Law and Rules, in the law offices of LIPSITZ GREEN SCIME CAMBRIA LLP, 42 Delaware Avenue, Suite 120, Buffalo, New York, taken on May 30, 2023, commencing at 1:54 P.M., before VALERIE A. ROSATI, Notary Public. Sue Ann Simonin Court Reporting FILED: ERIE COUNTY CLERK 11/09/2023 01:06 12:44 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 124 RECEIVED NYSCEF: 11/09/2023 3 1 INDEX TO WITNESSES 2 3 4 Witness: CHRYSTLER STORTZ Page 5 Examination By: 6 Mr. Dingeldey 6 7 Mr. Lent 39 8 Mr. Nicastro 44 9 Mr. Lent 53 10 Mr. Nicastro 54 11 Mr. Dingeldey 56 12 13 14 15 16 17 18 19 20 21 22 23 Sue Ann Simonin Court Reporting FILED: ERIE COUNTY CLERK 11/09/2023 01:06 12:44 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 124 RECEIVED NYSCEF: 11/09/2023 4 1 A P P E A R A N C E S: 2 C A N T O R, W O L F F, N I C A S T R O & H A L L L L C , B y J O S E P H L . N I C A S T R O, E S Q . , 3 2 1 4 0 M a i n P l a c e T o w e r, 3 5 0 M a i n S t r e e t, 4 B u f f a l o, N e w Y o r k 1 4 2 0 2, A p p e a r i n g f o r t h e P l a i n t i f f s. 5 B A X T E R & S M I T H, P . C . , 6 By LOUIS B. DINGELDEY JR., ESQ., 1 8 2 D w y e r S t r e e t, 7 W e s t S e n e c a, N e w Y o r k 1 4 2 2 4, Appearing for Defendants and 8 T h i r d- P a r t y P l a i n t i f f s. 9 LIPSITZ GREEN SCIME CAMBRIA LLP, B y G R E G O R Y P . K R U L L, E S Q . , 10 4 2 D e l a w a r e A v e n u e, Suite 120, 11 B u f f a l o, N e w Y o r k 1 4 2 0 2- 3 9 2 4, A p p e a r i n g f o r T h i r d- P a r t y D e f e n d a n t 12 C h r y s t l e r L e e S t o r z. 13 M A R S H A L L D E N N E H E Y W A R N E R C O L E M A N & G O G G I N, P . C . , B y T H O M A S M . L E N T, E S Q . , 14 7 1 7 S t a t e S t r e e t, Suite 701, 15 E r i e, P e n n s y l v a n i a 1 6 5 0 1, A p p e a r i n g f o r T h i r d- P a r t y D e f e n d a n t 16 Heather A. Thibeault a/k/a H e a t h e r A . S t o r t z. 17 18 19 (The following stipulations were entered 20 i n t o b y a l l p a r t i e s. ) 21 It is hereby stipulated by and between counsel 22 for the respective parties that the oath of the 23 R e f e r e e i s w a i v e d, t h a t f i l i n g a n d c e r t i f i c a t i o n Sue Ann Simonin Court Reporting FILED: ERIE COUNTY CLERK 11/09/2023 01:06 12:44 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 124 RECEIVED NYSCEF: 11/09/2023 5 1 o f t h e t r a n s c r i p t a r e w a i v e d, a n d t h a t a l l 2 o b j e c t i o n s, e x c e p t a s t o t h e f o r m o f t h e 3 q u e s t i o n s, a r e r e s e r v e d u n t i l t h e t i m e o f t r i a l. 4 5 M R . K R U L L: I ' l l r e a d a n d s i g n. If we don't, you 6 k n o w, p r o v i d e i t w i t h i n s i x t y d a y s t h e n i t ' s 7 d e e m e d a c c e p t e d. 8 9 C H R Y S T L E R S T O R T Z, 10 5 6 S t e n z i l S t r e e t, N o r t h T o n a w a n d a, N e w Y o r k 1 4 1 2 0, 11 a f t e r b e i n g d u l y c a l l e d a n d s w o r n, 12 t e s t i f i e d a s f o l l o w s: 13 14 M R . K R U L L: B e f o r e w e s t a r t, I j u s t w a n t t o p u t o n 15 t h e r e c o r d. I ' m r e p r e s e n t i n g T h i r d- P a r t y 16 D e f e n d a n t C h r y s t l e r S t o r t z, a n d I ' v e s p o k e n w i t h 17 counsel last week about the extent to which Mr. 18 Stortz can or can't answer questions relative to 19 s p e c i f i c e v e n t s a l l e g ed i n t h e s u i t. And I've 20 advised counsel beforehand that relative to the 21 s p e c i f i c s o f t h e i n c i d e n t, h e h a s b e e n a d v i s e d t o 22 p l e a d t h e F i f t h a g a i n s t s e l f- i n c r i m i n a t i o n i n 23 reference to potential federal liability criminal Sue Ann Simonin Court Reporting FILED: ERIE COUNTY CLERK 11/09/2023 01:06 12:44 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 124 RECEIVED NYSCEF: 11/09/2023 6 1 s t a t u t es . 2 I w i l l s a y t h a t t h e T h i r d- P a r t y C o m p l a i n t 3 was answered where various allegations were 4 responded to this way. A n d t h e a n s w e r, p a r a g r a p h 5 t w o , q u o t e, w i t h r e s p e c t t o t h e a l l e g a t i o n s 6 n u m b e r e d e i g h t a n d n i n e, D e f e n d a n t a d m i t s t h a t o n 7 July 22, 2019 he pled guilty to engaging in 8 sexual intercourse and oral sexual conduct with 9 N.J.S. on May 10, 2019 without her consent as set 10 forth in Penal Law Section 130 point 20, sub 1 11 and 2. 12 Defendant denies the remainder of the 13 allegations if the same call for legal 14 c o n c l u s i o n s. To the extent these allegations do 15 n o t c a l l f o r a l e g a l c o n c l u s i o n, D e f e n d a n t d e n i e s 16 k n o w l e d g e o r i n f o r m a t i o n a s t o s a m e, c l o s e q u o t e. 17 S o w i t h t h a t, w e ' l l a d v i s e M r . S t o r t z o n a I 18 g u e s s q u e s t i o n- b y - q u e s t i o n b a s i s. 19 20 E X A M I N A T I O N B Y M R . D I N G E L D E Y: 21 22 Q. O k a y. G o o d a f t e r n o o n. Do you prefer I call you 23 C h r y s t l e r o r M r . S t o r t z? Sue Ann Simonin Court Reporting FILED: ERIE COUNTY CLERK 11/09/2023 01:06 12:44 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 124 RECEIVED NYSCEF: 11/09/2023 7 1 A. M r . S t o r t z i s f i n e. 2 Q. O k a y. M r . S t o r t z, w e m e t b r i e f l y o f f t h e r e c o r d. 3 M y n a m e i s L o u D i n g e l d e y. I'm the attorney for 4 t h e W e s t S e n e c a C e n t r a l S c h o o l D i s t r i c t, a n d I ' m 5 here to ask you some questions about some 6 allegations that have been made about conduct 7 f r o m A p r i l a n d M a y o f 2 0 1 9, a s w e l l a s a l i t t l e 8 bit of background information and some of the 9 criminal related matters that may have followed 10 t h e s e i n c i d e n t s. O k a y? 11 A. O k a y. 12 M R . D I N G E L D E Y: Let me just -- I'm going to ask the 13 w i t n e s s f o r h i s d a t e o f b i r t h. We can redact it 14 so that the last two digits of the year are 15 s h o w n. 16 So I'm not going to have your whole date 17 w r i t t e n d o w n, b u t y o u c a n t e l l m e . 18 T H E W I T N E S S: ( R e d a c t e d) 2 0 0 2. 19 B Y M R . D I N G E L D E Y: 20 Q. O k a y. Y o u k n o w w h a t, b e f o r e w e g e t s t a r te d , I 21 s h o u l d j u s t k i n d o f g o o v e r s o m e g r o u n d r u l e s. 22 B e c a u s e o u r c o n v e r s a t i o n i s b e i n g r e c o r d e d, j u s t 23 do your best -- and you're off to a fine start -- Sue Ann Simonin Court Reporting FILED: ERIE COUNTY CLERK 11/09/2023 01:06 12:44 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 124 RECEIVED NYSCEF: 11/09/2023 8 1 t o l e t m e f i n i s h b e f o r e y o u a n s w e r. That way you 2 g e t t o h e a r t h e w h o l e q u e s t i o n. And do your best 3 to keep your voice up and give a yes or a no or 4 a n e x p l a n a t i o n. O k a y? 5 A. (Indicating yes.) 6 Q. Is that a yes? 7 A. Yes. 8 Q. A l l r i g h t. And if you don't understand any of my 9 q u e s t i o ns o r y o u c a n ' t h e a r m e , I ' m n o t b e i n g 10 l o u d e n o u g h, t h e r e' s a f a n , s o m e o n e i s c o u g hi n g , 11 let me know and I'll repeat or rephrase the 12 question for you. O k a y? 13 A. U n d e r s t o o d. 14 Q. We may jump around a little bit. If we do that 15 and you become uncertain as to the time frame of 16 t h e q u e s t i o n, w h e t h e r I m e a n t o d a y o r I m e a n f o u r 17 y e a r s a g o , l e t m e k n o w a n d I ' l l c l a r i f y. O k a y? 18 A. U n d e r s t o o d. 19 Q. A n d , l a s t l y, t r y t o b e p a t i e n t. Let me finish 20 before you answer and I'll try to give you the 21 s a m e c o u r t e s y. That way you get to hear the 22 w h o l e q u e s t i o n a n d w e ' r e n o t t a l ki n g o v e r e a c h 23 o t h e r, a n d t h e c o u r t r e p o r t e r c a n t a k e a n i c e, Sue Ann Simonin Court Reporting FILED: ERIE COUNTY CLERK 11/09/2023 01:06 12:44 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 124 RECEIVED NYSCEF: 11/09/2023 9 1 clean and accurate transcription of our 2 d i s c u s s i o n. O k a y? 3 A. O k a y. 4 Q. A l l r i g h t. You gave an address of 56 Stenzil 5 S t r e e t i n N o r t h T o n a w a n d a. Is that an apartment 6 o r a h o u s e? 7 A. H o u s e. 8 Q. A n d d o y o u o w n o r r e n t? 9 A. R e n t. 10 Q. H o w l o n g h a v e y o u l i v e d t h e r e? 11 A. T h r e e m o n t h s. 12 Q. D o y o u l i v e w i t h a n y o n e? 13 A. M y m o t h e r a n d s i s t e r. 14 Q. I s y o u r m o t h e r H e a t h e r T h i b e a u l t? 15 A. Yes. 16 Q. A n d w h o i s y o u r s i s t e r? 17 A. H e i d i P e t e r s o n. 18 M R . N I C A S T R O: W h a t w a s t h a t n a m e? I c o u l d n' t h e a r. 19 M R . D I N G E L D E Y: P e t e r s o n. H e i d i P e t e r s o n. 20 M R . N I C A S T R O: Gotcha. 21 B Y M R . D I N G E L D E Y: 22 Q. B a c k i n a p p r o x i m a t e l y A p r i l a n d M a y o f 2 0 1 9, 23 w h e r e d i d y o u l i v e? Sue Ann Simonin Court Reporting FILED: ERIE COUNTY CLERK 11/09/2023 01:06 12:44 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 129 124 RECEIVED NYSCEF: 11/09/2023 10 1 A. 2 4 B a r n s d a l e A v e n u e. 2 Q. T h a t' s i n W e s t S e n e c a? 3 A. Yes. 4 Q. T h