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FILED: ERIE COUNTY CLERK 11/24/2020 09:01 PM INDEX NO. 800040/2019
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 11/24/2020
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
_________________________________________
MARK WELT and MARY WELT,
AFFIRMATION IN OPPOSITION
Plaintiffs, TO DEFENDANT WING
ENTERPRISES’ MOTION TO
COMPEL
vs.
RICHARD MATTIOLI d/b/a CLINTON AUTO Index No. 800040/2019
REPAIR,
ANN MATTIOLI
and
WING ENTERPRISES, INCORPORATED
d/b/a LITTLE GIANT SOLUTIONS,
Defendants.
_________________________________________
MELISSA D. WISCHERATH, an attorney duly admitted to practice law before the
Court of the State of New York, affirms the following to be true, upon information and
belief, under the penalties of perjury:
1. I am an attorney at law, duly licensed to practice in the State of New York,
and am an associate in the law firm of Lipsitz Green Scime Cambria LLP, attorneys for
plaintiffs, Mark and Mary Welt, in the above-captioned action. As such, I am fully
familiar with the facts and circumstances stated herein.
2. I submit this Affirmation in Opposition to the Motion filed by defendant
WING ENTERPRISES, INCORPORATED d/b/a LITTLE GIANT SOLUTIONS
(hereinafter referred to at times as “Wing Enterprises”) against the plaintiffs.
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THE FIRST INSPECTION
3. Defendant Wing Enterprises previously inspected the subject ladder on
April 1, 2019.
4. The subject ladder is currently in the possession of plaintiffs’ consultant in
Connecticut.
POINT I
A SECOND DEPOSITION PLAINTIFF MARK WELT IS IMPROPER
5. Defendant Wing Enterprises improperly moves this Court (1) to compel
plaintiff to appear for a second to answer three questions and (2) to compel Mr. Welt to
‘examine and compare the two ladders at the site inspection” prior to his second
deposition. Affirmation of James Eagan sworn to November 12, 2020 (hereinafter,
"Eagan Aff."), Dkt. 13 at ¶¶8, 13, 14 and ¶21(e)-(f).
6. Here, defendant seeks further answers to three questions. See Egan Aff.
¶¶8, 13, 14, 21(e)-(f).
7. All these questions are palpably improper because they required plaintiff,
in whole or in part, to (1) make legal and factual conclusions; (2) draw inferences from
unestablished facts; (3) to give a legal assessment of defendant Wing Enterprises
duties in the design of the ladder; and (4) to give opinions in fields of mechanical and
human factors engineering, in which plaintiff has no background.
8. These questions were properly objected to and the third question was
answered. See, e.g., Kaye v. Tee Bar Corp., 151 A.D.3d 1530, 1531-32 (3d Dep't 2017)
(holding that it is palpably improper to compel a party "to answer questions seeking
legal or factual conclusions or questions asking him [or her] to draw inferences from
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facts" or to give a "legal assessment derived from the underlying facts that goes beyond
the factual evidentiary scope of a deposition."); Mayer v. Hoang, 83 A.D.3d 1516, 1518
(4th Dep't 2011) (reversing the trial court and holding that questions seeking legal or
factual conclusions, or those that require the witness to draw inferences from facts are
palpably improper); Barber v. BPS Venture, Inc., 31 A.D.3d 897 (3d Dep't 2006)
(holding that fact-based questions based on personal knowledge are appropriate and
those relating to ultimate legal conclusions are palpably improper) ; Lobdell v. South
Buffalo Ry. Co., 159 A.D. 958 (4th Dep't 1990) (same).
9. As the Fourth Department stated in Mayer v. Hoang, 83 A.D.3d 1516,
1518 (4th Dep't 2011),”plaintiff properly refused to answer questions concerning
whether defendant supplied any defective, unsafe or improper devices or materials
which caused [plaintiff's] fall or whether the work area appeared to be unreasonably
dangerous.”
10. Further explaining, “It is well settled that a plaintiff at a deposition may not
‘be compelled to answer questions seeking legal and factual conclusions or questions
asking him [or her] to draw inferences from the facts’ (Lobdell v South Buffalo Ry. Co.,
159 AD2d 958 [1990]; see Barber v BPS Venture, Inc., 31 AD3d 897 [2006]).” Id.
11. Finally, the Mayer Court held that “Plaintiff also properly refused to answer
the question whether he had ‘a calculation as to any lost wages that [he] would claim as
a result of this incident” inasmuch as such question primarily seeks a legal conclusion
(see generally Barber, 31 AD3d 897; Lobdell, 159 AD2d 958).’” Id.
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a) The First Question
12. Defendant’s counsel asked plaintiff whether the locks from the exemplar
ladder, appeared to be the same as the subject ladder. Aff. Eagan at ¶8.
13. This question, if answered, would have required plaintiff to assume a
number of unestablished facts-namely, which type, make, year and model of lock was
involved on the subject ladder; whether the subject ladder and exemplar ladder were
equipped with the same lock; whether various lock systems were designed, developed
and utilized on the subject and exemplar ladder.
14. This question requires plaintiff to draw a number of inferences and
unestablished facts. This is palpably improper under the law, and plaintiff should not be
compelled to answer. See Kaye, 151 A.D.3d at 1531-32; Mayer, 83 A.D.3d at 1518;
Barber, 31 A.D.3d at 897.
b) The Second Question
15. Defendant’s counsel asked, “If it [the ladder] was properly locked, would
the ladder have been able to de-extend?” Aff. Eagan at ¶14.
16. This question is palpably improper since it called for plaintiff to assess
Defendant Wing Enterprises’ legal duties in the fields of mechanical engineering and
human factors. These are fields in which plaintiff has no expertise; thus, he cannot be
pressed to draw upon these disciplines to provide a response with the factual and legal
conclusions posed by defendant’s counsel, which is improper under the law. See Kaye,
151 A.D.3d at 1531-32; Mayer, 83 A.D.3d at 1518; Barber, 31 A.D.3d at 897.
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c) The Third Question
17. Plaintiff was asked for his opinion regarding what caused his fall, and
answered, “It slid down, like it was not locked in.” Aff. Eagan at ¶10.
18. He was then asked what he meant by that and plaintiff replied, “The ladder
obviously wasn’t locked in good enough or I would still be up there.” Aff. Eagan at ¶11.
19. Thereafter, he was asked whether he “had an opinion regarding what
happened to those locks that caused them to come unlocked, if they did?” He
responded, “They obviously didn’t go in the hole all the way.” Aff. Eagan at ¶11.
20. He was later asked again, what was his opinion as to what caused the fall
(Aff. Eagan at ¶13), and responded “that ladder.”
21. Defendant’s counsel then asked plaintiff “And what is it about that ladder
that you believe caused your fall?” Aff. Eagan at 13.
22. This question was answered by plaintiff, but Defendant’s counsel was not
satisfied with his answer and clearly was seeking a more detailed opinion that called for
factual and legal conclusions, which is palpably improper and goes far beyond the
allowable scope of a fact-discovery deposition of the plaintiff and would require the
plaintiff to assess defendant Wing Enterprises legal duties, in the fields of mechanical
and human factors engineering.
d) Mr. Welt’s Comparison of the Subject and Exemplar Ladder
23. Asking this Court to compel Mr. Welt to “examine and compare the two
ladders at the site inspection” prior to his second deposition is palpably improper. Aff.
Eagan at ¶21.
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24. Compelling the plaintiff to examine and compare two ladders at a site
inspection would require plaintiff to make factual and legal conclusions during his
inspection and thereafter, when questioned about his examination, which is improper
under the law. See Kaye, 151 A.D.3d at 1531-32; Mayer, 83 A.D.3d at 1518; Barber, 31
A.D.3d at 897.
WHEREFORE, it is respectfully requested that the Court deny Defendant’s
motion to compel in its entirety and for such other and further relief as the Court deems
just and proper.
Dated this 24th day of November, 2020
Buffalo, NY 14202
_______________________________
Melissa D. Wischerath, Esq.
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FILED: ERIE COUNTY CLERK 11/24/2020 09:01 PM INDEX NO. 800040/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 11/24/2020 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE _________________________________________ MARK WELT and MARY WELT, AFFIRMATION IN OPPOSITION Plaintiffs, TO DEFENDANT WING ENTERPRISES’ MOTION TO COMPEL vs. RICHARD MATTIOLI d/b/a CLINTON AUTO Index No. 800040/2019 REPAIR, ANN MATTIOLI and WING ENTERPRISES, INCORPORATED d/b/a LITTLE GIANT SOLUTIONS, Defendants. _________________________________________ MELISSA D. WISCHERATH, an attorney duly admitted to practice law before the Court of the State of New York, affirms the following to be true, upon information and belief, under the penalties of perjury: 1. I am an attorney at law, duly licensed to practice in the State of New York, and am an associate in the law firm of Lipsitz Green Scime Cambria LLP, attorneys for plaintiffs, Mark and Mary Welt, in the above-captioned action. As such, I am fully familiar with the facts and circumstances stated herein. 2. I submit this Affirmation in Opposition to the Motion filed by defendant WING ENTERPRISES, INCORPORATED d/b/a LITTLE GIANT SOLUTIONS (hereinafter referred to at times as “Wing Enterprises”) against the plaintiffs. 1 4021998, 1, 064584.0001 1 of 6 FILED: ERIE COUNTY CLERK 11/24/2020 09:01 PM INDEX NO. 800040/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 11/24/2020 THE FIRST INSPECTION 3. Defendant Wing Enterprises previously inspected the subject ladder on April 1, 2019. 4. The subject ladder is currently in the possession of plaintiffs’ consultant in Connecticut. POINT I A SECOND DEPOSITION PLAINTIFF MARK WELT IS IMPROPER 5. Defendant Wing Enterprises improperly moves this Court (1) to compel plaintiff to appear for a second to answer three questions and (2) to compel Mr. Welt to ‘examine and compare the two ladders at the site inspection” prior to his second deposition. Affirmation of James Eagan sworn to November 12, 2020 (hereinafter, "Eagan Aff."), Dkt. 13 at ¶¶8, 13, 14 and ¶21(e)-(f). 6. Here, defendant seeks further answers to three questions. See Egan Aff. ¶¶8, 13, 14, 21(e)-(f). 7. All these questions are palpably improper because they required plaintiff, in whole or in part, to (1) make legal and factual conclusions; (2) draw inferences from unestablished facts; (3) to give a legal assessment of defendant Wing Enterprises duties in the design of the ladder; and (4) to give opinions in fields of mechanical and human factors engineering, in which plaintiff has no background. 8. These questions were properly objected to and the third question was answered. See, e.g., Kaye v. Tee Bar Corp., 151 A.D.3d 1530, 1531-32 (3d Dep't 2017) (holding that it is palpably improper to compel a party "to answer questions seeking legal or factual conclusions or questions asking him [or her] to draw inferences from 2 4021998, 1, 064584.0001 2 of 6 FILED: ERIE COUNTY CLERK 11/24/2020 09:01 PM INDEX NO. 800040/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 11/24/2020 facts" or to give a "legal assessment derived from the underlying facts that goes beyond the factual evidentiary scope of a deposition."); Mayer v. Hoang, 83 A.D.3d 1516, 1518 (4th Dep't 2011) (reversing the trial court and holding that questions seeking legal or factual conclusions, or those that require the witness to draw inferences from facts are palpably improper); Barber v. BPS Venture, Inc., 31 A.D.3d 897 (3d Dep't 2006) (holding that fact-based questions based on personal knowledge are appropriate and those relating to ultimate legal conclusions are palpably improper) ; Lobdell v. South Buffalo Ry. Co., 159 A.D. 958 (4th Dep't 1990) (same). 9. As the Fourth Department stated in Mayer v. Hoang, 83 A.D.3d 1516, 1518 (4th Dep't 2011),”plaintiff properly refused to answer questions concerning whether defendant supplied any defective, unsafe or improper devices or materials which caused [plaintiff's] fall or whether the work area appeared to be unreasonably dangerous.” 10. Further explaining, “It is well settled that a plaintiff at a deposition may not ‘be compelled to answer questions seeking legal and factual conclusions or questions asking him [or her] to draw inferences from the facts’ (Lobdell v South Buffalo Ry. Co., 159 AD2d 958 [1990]; see Barber v BPS Venture, Inc., 31 AD3d 897 [2006]).” Id. 11. Finally, the Mayer Court held that “Plaintiff also properly refused to answer the question whether he had ‘a calculation as to any lost wages that [he] would claim as a result of this incident” inasmuch as such question primarily seeks a legal conclusion (see generally Barber, 31 AD3d 897; Lobdell, 159 AD2d 958).’” Id. 3 4021998, 1, 064584.0001 3 of 6 FILED: ERIE COUNTY CLERK 11/24/2020 09:01 PM INDEX NO. 800040/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 11/24/2020 a) The First Question 12. Defendant’s counsel asked plaintiff whether the locks from the exemplar ladder, appeared to be the same as the subject ladder. Aff. Eagan at ¶8. 13. This question, if answered, would have required plaintiff to assume a number of unestablished facts-namely, which type, make, year and model of lock was involved on the subject ladder; whether the subject ladder and exemplar ladder were equipped with the same lock; whether various lock systems were designed, developed and utilized on the subject and exemplar ladder. 14. This question requires plaintiff to draw a number of inferences and unestablished facts. This is palpably improper under the law, and plaintiff should not be compelled to answer. See Kaye, 151 A.D.3d at 1531-32; Mayer, 83 A.D.3d at 1518; Barber, 31 A.D.3d at 897. b) The Second Question 15. Defendant’s counsel asked, “If it [the ladder] was properly locked, would the ladder have been able to de-extend?” Aff. Eagan at ¶14. 16. This question is palpably improper since it called for plaintiff to assess Defendant Wing Enterprises’ legal duties in the fields of mechanical engineering and human factors. These are fields in which plaintiff has no expertise; thus, he cannot be pressed to draw upon these disciplines to provide a response with the factual and legal conclusions posed by defendant’s counsel, which is improper under the law. See Kaye, 151 A.D.3d at 1531-32; Mayer, 83 A.D.3d at 1518; Barber, 31 A.D.3d at 897. 4 4021998, 1, 064584.0001 4 of 6 FILED: ERIE COUNTY CLERK 11/24/2020 09:01 PM INDEX NO. 800040/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 11/24/2020 c) The Third Question 17. Plaintiff was asked for his opinion regarding what caused his fall, and answered, “It slid down, like it was not locked in.” Aff. Eagan at ¶10. 18. He was then asked what he meant by that and plaintiff replied, “The ladder obviously wasn’t locked in good enough or I would still be up there.” Aff. Eagan at ¶11. 19. Thereafter, he was asked whether he “had an opinion regarding what happened to those locks that caused them to come unlocked, if they did?” He responded, “They obviously didn’t go in the hole all the way.” Aff. Eagan at ¶11. 20. He was later asked again, what was his opinion as to what caused the fall (Aff. Eagan at ¶13), and responded “that ladder.” 21. Defendant’s counsel then asked plaintiff “And what is it about that ladder that you believe caused your fall?” Aff. Eagan at 13. 22. This question was answered by plaintiff, but Defendant’s counsel was not satisfied with his answer and clearly was seeking a more detailed opinion that called for factual and legal conclusions, which is palpably improper and goes far beyond the allowable scope of a fact-discovery deposition of the plaintiff and would require the plaintiff to assess defendant Wing Enterprises legal duties, in the fields of mechanical and human factors engineering. d) Mr. Welt’s Comparison of the Subject and Exemplar Ladder 23. Asking this Court to compel Mr. Welt to “examine and compare the two ladders at the site inspection” prior to his second deposition is palpably improper. Aff. Eagan at ¶21. 5 4021998, 1, 064584.0001 5 of 6 FILED: ERIE COUNTY CLERK 11/24/2020 09:01 PM INDEX NO. 800040/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 11/24/2020 24. Compelling the plaintiff to examine and compare two ladders at a site inspection would require plaintiff to make factual and legal conclusions during his inspection and thereafter, when questioned about his examination, which is improper under the law. See Kaye, 151 A.D.3d at 1531-32; Mayer, 83 A.D.3d at 1518; Barber, 31 A.D.3d at 897. WHEREFORE, it is respectfully requested that the Court deny Defendant’s motion to compel in its entirety and for such other and further relief as the Court deems just and proper. Dated this 24th day of November, 2020 Buffalo, NY 14202 _______________________________ Melissa D. Wischerath, Esq. 6 4021998, 1, 064584.0001 6 of 6