Preview
FILED: ONTARIO COUNTY CLERK 07/08/2020 09:50 PM INDEX NO. 126702-2020
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 07/08/2020
202007090044
Index # : 126702-2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ONTARIO
DENNIS GRUTTADARO,
Index No.: 126702-2020
Plaintiff,
AFFIDAVIT IN
-vs- OPPOSITION OF
MOTION TO COMPEL
WILLIAM PATRICK FRICKE,
Defendant
CARL A. STEINBRENNER, ESQ., an attorney duly adn-ined to practice before the Courts of
the State of New York, does hereby affinn under penalties of perjury pursuant to CPLR §2106 as follows:
1. I am the attorney for W. Patrick Fricke ("Defendant"), in the above-referenced action,
and make thisAffidavit based upon my kñcwladge and my review of the pleadings, affidavits and other
documents and filingsassociated with this matter.
2. I submit this Affidavit in opposition to Plaintiff s Motion to Compel supplcmcutal
responses by Defendant to certain enneerated particulars set forth in Defendant's Verified Bill of
Particulars, and for such other and further relief as thisCourt deems just and proper.
3. On February 14, 2020, Plaintiff served a Demand fora Veriñed Bill of Particulars
(see New York State Courts Electronic Filing ("NYSCEF") Doc. No. 21, incorporated herein by
reference).
4. The particulars demanded by Plaintiff encompassed 9 pages and details concerning over
70 items.
5. On May 31, 2020, despite the challenges imposed by continuing no in-person contact
restrictions with outside individuals, including attorneys, instituted by the Ontario County Jail due tothe
outbreak of the COVID-19 Coronavirus, Defendant submitted a 13 page Verified Bill of Particulars,with
1
1 of 3
- 202007090044
FILED: ONTARIO COUNTY CLERK 07/08/2020 09:50 PM INDEXIndexNO.
#: 126702-2020
126702-2020
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 07/08/2020
particulars set forth on each item demanded by Plaintiff (see NYSCEF Doc. No. 38, incorporated herein
by reference).
6. On June 15, 2020, Plaintiff filed a Notice of Motion to Compel and supporting
Affùmation and Memorandum of Law, for supplcmcatal responses to certain of the particulars provided
by Defendant (see NYSCEF Doc. No. 42, 43, and 44, incorporated herein by reference). These particulars
are identified by the Plaintiff in itsAffirmation and involved detailed factual information evideñcing
Defendant's claims and defenses.
7. No compliance with Section 202.7 of the Uniform Rules for the Supreme Court and the
County Court (22 CRR-NY 202.7) was attempted by Plaintiff prior to the filing of itspending motion
relating to a bill of particulars.
8. Plaintiff's only cc--÷ation with Defendant's counsel was an ultimatum contained in
a perfunctory June 3, 2020 letter(see NYSCEF Doc. No. 39, incorporated herein by reference), which
was also used jointly for a related case before the Court for which opposing counsel isalso of record as
plaintiff's counsel. The ccrrnbation was anything but a good faith effortto resolve issues, simply
threatcñiñg that "If defendant does not provide fulland compictc responses (within seven days), plaintiffs
will move forward with motion practice".
9. Plaintiff's demand for suppleñieñtal particulars seeks improper evidentiary disclosure and
not an amplification of Defendant's counterclaims and affirmative defenses. Defendant's counterclaims
and defenses are clearly and concisely stated (see NYSCEF Doc. No. 4, incorporated herein by
reference). In fact, they are consistent with and extremely similar to Plaintiff's statcmcats of itsown
claims and affirmative defenses (see NYSCEF Doc. No. 1 and Doc. No. 20, incorporated herein by
reference).
10. Plaintiff'sdemañd for supplemstal particulars merely seeks further evidentiary details,
and Plaintiffwill have ample opportunity for such disclosure in Defeast's deposition upon oral
examin*ion already noticed by Plaintiff (see NYSCEF Doc. No. 5, incorporated herein by reference).
2
2 of 3
- 202007090044 ---
FILED: ONTARIO COUNTY CLERK 07/08/2020 09:50 PM INDEXIndexNO.
#: 126702-2020
126702-2020
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 07/08/2020
11. Skeltssous or parallel criminal and civilproceedings relating to the same facts,and the
unique issues, challeñges, and b±=i=g of interests and burdens they give rise to,should also be taken in
consideration and addressed by the Court utilkhg itsdiscretionary powers prior to granting any order
related to supplemental particulars.
12. A balancing of the burdens and interests of the Plaintiff,the Defendant, the civil and
criminal judicial systems, and the public interest in an unfettered criminal proceedag merits denying any
further required factual evidentiary disclosure by Dcfcñdant at this time.
13. There isburden to the Defendant of the risk of information provided to Plaintiffunfairly
inuring to the benefit of the Government in the prosecution of the criminal action against Defendant.
Fifth Amendment rights are implicated. Judicial economy dictates avoiding duplicative effort in the
assembliñg of the same factual data before two judges in three separate legal proceedings. The public
interest as represented by prosecutorial authorities in a speedy criminal proceedag üñeñcambered by
issues relating to private civil litigationinterests isprofound. There isno prejudice to Plaintiffto
Defendant not providing additional evidentiary information at thistime.
14. Taken as a whole, Plaintiff in his supporting memorandum of law and affirmation has not
presented sufficient facts, law or equities justifying the issuance of an order to compel Defeñdañt to
provide supplemeñtal particulars. Plaintiff has not even met the threshold procedural requirements for the
filing of itspending motion. Defendant, therefore, respectfully reqüésts the Court to deny the requested
Motion to Compel, and requests any other and further reliefas the Court deems just and proper.
Dated: July 8, 2020
Rochester, NY
Carl A. Steinbrenner, Esq.
3
3 of 3
Preview
FILED: ONTARIO COUNTY CLERK 07/08/2020 09:50 PM INDEX NO. 126702-2020 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 07/08/2020 202007090044 Index # : 126702-2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONTARIO DENNIS GRUTTADARO, Index No.: 126702-2020 Plaintiff, AFFIDAVIT IN -vs- OPPOSITION OF MOTION TO COMPEL WILLIAM PATRICK FRICKE, Defendant CARL A. STEINBRENNER, ESQ., an attorney duly adn-ined to practice before the Courts of the State of New York, does hereby affinn under penalties of perjury pursuant to CPLR §2106 as follows: 1. I am the attorney for W. Patrick Fricke ("Defendant"), in the above-referenced action, and make thisAffidavit based upon my kñcwladge and my review of the pleadings, affidavits and other documents and filingsassociated with this matter. 2. I submit this Affidavit in opposition to Plaintiff s Motion to Compel supplcmcutal responses by Defendant to certain enneerated particulars set forth in Defendant's Verified Bill of Particulars, and for such other and further relief as thisCourt deems just and proper. 3. On February 14, 2020, Plaintiff served a Demand fora Veriñed Bill of Particulars (see New York State Courts Electronic Filing ("NYSCEF") Doc. No. 21, incorporated herein by reference). 4. The particulars demanded by Plaintiff encompassed 9 pages and details concerning over 70 items. 5. On May 31, 2020, despite the challenges imposed by continuing no in-person contact restrictions with outside individuals, including attorneys, instituted by the Ontario County Jail due tothe outbreak of the COVID-19 Coronavirus, Defendant submitted a 13 page Verified Bill of Particulars,with 1 1 of 3 - 202007090044 FILED: ONTARIO COUNTY CLERK 07/08/2020 09:50 PM INDEXIndexNO. #: 126702-2020 126702-2020 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 07/08/2020 particulars set forth on each item demanded by Plaintiff (see NYSCEF Doc. No. 38, incorporated herein by reference). 6. On June 15, 2020, Plaintiff filed a Notice of Motion to Compel and supporting Affùmation and Memorandum of Law, for supplcmcatal responses to certain of the particulars provided by Defendant (see NYSCEF Doc. No. 42, 43, and 44, incorporated herein by reference). These particulars are identified by the Plaintiff in itsAffirmation and involved detailed factual information evideñcing Defendant's claims and defenses. 7. No compliance with Section 202.7 of the Uniform Rules for the Supreme Court and the County Court (22 CRR-NY 202.7) was attempted by Plaintiff prior to the filing of itspending motion relating to a bill of particulars. 8. Plaintiff's only cc--÷ation with Defendant's counsel was an ultimatum contained in a perfunctory June 3, 2020 letter(see NYSCEF Doc. No. 39, incorporated herein by reference), which was also used jointly for a related case before the Court for which opposing counsel isalso of record as plaintiff's counsel. The ccrrnbation was anything but a good faith effortto resolve issues, simply threatcñiñg that "If defendant does not provide fulland compictc responses (within seven days), plaintiffs will move forward with motion practice". 9. Plaintiff's demand for suppleñieñtal particulars seeks improper evidentiary disclosure and not an amplification of Defendant's counterclaims and affirmative defenses. Defendant's counterclaims and defenses are clearly and concisely stated (see NYSCEF Doc. No. 4, incorporated herein by reference). In fact, they are consistent with and extremely similar to Plaintiff's statcmcats of itsown claims and affirmative defenses (see NYSCEF Doc. No. 1 and Doc. No. 20, incorporated herein by reference). 10. Plaintiff'sdemañd for supplemstal particulars merely seeks further evidentiary details, and Plaintiffwill have ample opportunity for such disclosure in Defeast's deposition upon oral examin*ion already noticed by Plaintiff (see NYSCEF Doc. No. 5, incorporated herein by reference). 2 2 of 3 - 202007090044 --- FILED: ONTARIO COUNTY CLERK 07/08/2020 09:50 PM INDEXIndexNO. #: 126702-2020 126702-2020 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 07/08/2020 11. Skeltssous or parallel criminal and civilproceedings relating to the same facts,and the unique issues, challeñges, and b±=i=g of interests and burdens they give rise to,should also be taken in consideration and addressed by the Court utilkhg itsdiscretionary powers prior to granting any order related to supplemental particulars. 12. A balancing of the burdens and interests of the Plaintiff,the Defendant, the civil and criminal judicial systems, and the public interest in an unfettered criminal proceedag merits denying any further required factual evidentiary disclosure by Dcfcñdant at this time. 13. There isburden to the Defendant of the risk of information provided to Plaintiffunfairly inuring to the benefit of the Government in the prosecution of the criminal action against Defendant. Fifth Amendment rights are implicated. Judicial economy dictates avoiding duplicative effort in the assembliñg of the same factual data before two judges in three separate legal proceedings. The public interest as represented by prosecutorial authorities in a speedy criminal proceedag üñeñcambered by issues relating to private civil litigationinterests isprofound. There isno prejudice to Plaintiffto Defendant not providing additional evidentiary information at thistime. 14. Taken as a whole, Plaintiff in his supporting memorandum of law and affirmation has not presented sufficient facts, law or equities justifying the issuance of an order to compel Defeñdañt to provide supplemeñtal particulars. Plaintiff has not even met the threshold procedural requirements for the filing of itspending motion. Defendant, therefore, respectfully reqüésts the Court to deny the requested Motion to Compel, and requests any other and further reliefas the Court deems just and proper. Dated: July 8, 2020 Rochester, NY Carl A. Steinbrenner, Esq. 3 3 of 3