Preview
FILED: WESTCHESTER COUNTY CLERK 05/13/2020 03:32 PM INDEX NO. 63376/2018
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/13/2020
SUPREME COURT OF THE STATE OF NEW YORK AFFIDAVIT IN SUPPORT
COUNTY OF WESTCHESTER OF SUMMARY
-----------------------------------------------------------------------X JUDGMENT
LORRAINE CASCIONE,
Action No. 2
Plaintiff,
Index No. 63376/2018
-against- Motion No. 2
Return Date:
June 17, 2020
D’AGOSTINO LAW OFFICE, P.C., CHARLES A.
D’AGOSTINO and JOSEPH RIZZO, Assigned Justice:
Defendants, Hon. Lawrence H. Ecker
-----------------------------------------------------------------------X
STATE OF NEW YORK )
COUNTY OF WESTCHESTER ):ss
JOSEPH RIZZO, being duly sworn deposes and says:
1. I am the one of the Defendants in the above entitled action and, and
as such, I am fully familiar with all of the facts, circumstances, and proceedings heretofore
had herein.
2. That by Notice of Motion filed January 7, 2020 and returnable
January 29, 2020 deponent moved this Court to dismiss Plaintiff LORRAINE
CASCIONE’s cause of action and Co-Defendants’ CHARLES A. D’AGOSTION and
D’AGOSTINO LAW OFFICE, P.C.’s Crossclaims in toto.
3. That by Stipulation dated January 13, 2020 the parties agreed to
Joseph Rizzo, Esq.
1214 W. Boston Post Rd.
#213 adjourn the return date to March 4, 2020 at the request of Plaintiff’s counsel. A copy of
Mamaroneck, NY 10543
(914) 560-7007
the stipulation is annexed hereto as Exhibit “I”.1
1
Exhibit lettering is continued pursuant to Justice Ecker’s Court Rule III.F.3.
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4. The Motion to Dismiss was fully submitted on March 4, 2020 and by
Court Notice dated April 17, 2020 a telephone conference with all counsel and the Court
was conducted on Tuesday, April 21, 2020 at 2PM. A copy of the Court Notice of April
17, 2020 is annexed hereto as Exhibit “J”.
5. Thereafter, by Court Notice dated April 24, 2020 the Court converted
the Motion to Dismiss to a Motion for Summary Judgment pursuant to its authority as set
forth in CPLR 3211(c) and directed Deponent to submit further affidavits and memoranda
of law by May 13, 2020. A copy of the Court Notice of April 24, 2020 is annexed hereto
as Exhibit “K”.
6. I submit this Affidavit and accompanying Memorandum of Law in
support of the converted motion for Summary Judgment to Dismiss Plaintiff’s action and
Defendants’, D’Agostino Law Office, P.C.’s and Charles A. D’Agostino’s (hereinafter the
“D’Agostino Defendants”), Crossclaims in toto pursuant to the Court’s April 24, 2020
Notice (Exhibit “K”) and to augment the Affidavit in Support, Affidavit in Reply and
Memoranda of Law previously submitted in support of the original Motion to Dismiss.
7. The Plaintiff’s complaint alleging malpractice is solely based on the
allegation that Defendants failed to timely disclose “the expert or appraiser's report, which
valued the decedent's personal property as of May 18, 2010” (hereinafter the “Personal
Property Appraisal” and that Plaintiff learned for the very first time on the date of the trial
Joseph Rizzo, Esq.
1214 W. Boston Post Rd. that Deponent “planned to offer into evidence at trial expert reports that has been altered”.
#213
Mamaroneck, NY 10543
(914) 560-7007 See Plaintiff’s Complaint (Exhibit “G”) at para. “18.” and “34.” respectively (emphasis
added).
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8. Plaintiff further alleges that because of Defendants’ alleged
negligence she was forced to settle the matter. See Plaintiff’s Complaint (Exhibit “G”) at
para. “39.” and “44.” (emphasis added).
9. In this case the documentary evidence contradicts Plaintiff’s
allegations of malpractice in her complaint. Specifically, although Plaintiff’s complaint is
based on her allegation that she was forced to settle the matter, the transcript of her voir
dire (Exhibit “F”) conclusively negates that allegation. There is no additional evidence
alleged that Plaintiff was not aware of at the time of the settlement and voir dire..
10. It is important to note that the Plaintiff’s husband, Joseph Cascione
(hereinafter also referred to as “Mr. Cascione”), was a successful personal injury attorney
in New York and is still listed as a licensed attorney registered in the State of New York.
11. The Surrogate’s Court Action was largely controlled by Mr. Cascione
which resulted in several disagreements with Charles A. D’Agostino, Esq. who is the sole
officer of D’Agostino Law Office, P.C., the attorneys of record on the matter.
12. It was Mr. Cascione that did not take the discovery process seriously
as his belief was that the Executor, Plainitff’s brother, in the underlying action would
simply fail to show for the hearing for fear of facing Mr. Cascione.
13. In fact, Mr. Cascione was advocating that the matter should be
immediately placed on the trial calendar four months before entering into any discovery
Joseph Rizzo, Esq.
1214 W. Boston Post Rd. order as follows2:
#213
Mamaroneck, NY 10543
(914) 560-7007
2
The first Discovery Order was issued on May 21, 2015 (hereinafter “First
Discovery Order”) after a conference was held with the Court on May 20, 2015. A copy
of the Discovery Order is annexed hereto as Exhibit “L”.
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a. As early as January 15, 2015 Mr. Cascione was
advocating in seeking no further discovery other than
bank records and fast tracking the case. A copy of Mr.
Cascione’s e-mail dated January 15, 2015 is annexed
hereto as Exhibit “M”.
b. On February 2, 2015 Mr. Cascione again reiterated that
the matter “must be added to the trial calendar”. A copy
of Mr. Cascione’s e-mail dated February 2, 2015 is
annexed hereto as Exhibit “N”.
c. On February 13, 2015 Mr. Cascione again indicated
“[w]e need no discovery what we need is a trial date”. A
copy of Mr. Cascione’s e-mail dated February 13, 2015
is annexed hereto as Exhibit “O”.
d. On February 20, 2015 Mr. Cascione again stated that
Plaintiff was “entitled to senior relief for an expedited
trial.”A copy of Mr. Cascione’s e-mail dated February
20, 2015 is annexed hereto as Exhibit “P”.
14. As an example of the issues we were having in the discovery process
with Mr. Cascione I attach hereto an e-mail exchange from June 29-30, 2015 wherein Co-
Defendant Mr. D’Agostino was explaining that monies Plaintiff and Mr. Cascione claimed
were wrongly taken were in fact deposited into their account. Additionally, Mr. D’Agostino
advised “MORE IMPORTANT is the fact that the discovery you treat so casually is
COURT ORDERED.” Copies of the e-mail exchange are annexed hereto as Exhibit “Q”.
15. The First Discovery Order was later stayed on consent due to the
fact that Mr. Cascione directed D’Agostino Law Office, P.C. to file a motion seeking to
disqualify the Executor’s attorneys. The Executor filed a cross motion seeking to dismiss
Joseph Rizzo, Esq.
1214 W. Boston Post Rd.
#213 Plaintiff’s objections which resulted in a Decision and Order dated December 14, 2015. A
Mamaroneck, NY 10543
(914) 560-7007
copy of the Decision and Order is annexed hereto as Exhibit “R”.
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16. Examinations Before Trial were conducted on August 31, 2016. The
Transcript of Examination Before Trial of Plaintiff in the Surrogate’s Court is Action
annexed hereto as Exhibit “S”.
17. It was not until three months later in November 2016 that Mr.
Cascione procured, arranged for and allegedly paid for the Personal Property Appraisal
on his own. Mr. Cascione never provided Defendants with the cost of the Personal
Property Appraisal.
18. More importantly, Plaintiff’s allegations that the appraiser’s report
“valued the decedent’s personal property as of May 18, 2010”3 is patently untrue.
19. I did meet the appraiser at the Cascione residence in Connecticut on
November 23, 2016 and can confirm that he was analyzing the Cascione’s personal
property not that of the Decedent.
20. The cover page of the Personal Property Appraisal confirms that it is
the “Appraisal of the Property of Mr. and Mrs. Joseph Cascione” which are the Plaintiff
and her husband, not the property of the Decedent. A copy of the Personal Property
Appraisal is attached hereto as Exhibit “T”.
21. The Accounting provided by the Executor in the Surrogate’s Court
Action did not list any jewelry and only assorted miscellaneous furniture with a total value
of $1,018.00. A copy of the Accounting is annexed hereto as Exhibit “U”.
Joseph Rizzo, Esq.
1214 W. Boston Post Rd. 22. The last time that Plaintiff was in the Decedent’s home was on
#213
Mamaroneck, NY 10543
(914) 560-7007 Christmas Eve of 2009 and the Decedent died in May 2010 at which time Plaintiff claimed
3
See Plaintiff’s Complaint (Exhibit “G”) at para. “18.”
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to have been denied access to the property. See Transcript of Examination Before Trial
of Plaintiff (Exhibit “R”) at p.11, ln. 1-5, p. 16, ln. 18-24.
23. Accordingly, Plaintiff had not seen any of the Decedent’s jewelry or
personal property since December of 2009, nearly eight (8) years prior to the scheduled
hearing on the matter and five (5) months prior to Decedent’s date of death.
24. Plaintiff’s husband, Joseph Cascione, planned to testify that all the
furniture and jewelry that was appraised was identical to, or similar to, the Decedent’s,
so, in fact, Plaintiff did not have Decedent’s property to appraise. Accordingly, it was far
from certain whether the Court would determine that the Decedent was in possession of
any of the items at the time of her death, let alone attribute the appraised value to the
Decedent’s property.
25. Again in an e-mail exchange with Plaintiff between September 11-
13, 2016 Plaintiff again reiterated her request to obtain “a trial date as soon as possible”
and again I advised I would need any photographs and appraisals “relatively immediately
or we run the risk they will be precluded by the Court.” Plaintiff responded “we have
supplied all the information we have .please obtain as early as possible trial date.” A copy
of the e-mail exchange is annexed hereto as Exhibit “V”.
26. That two months later in response to Plaintiff’s and Mr. Cascione’s
continued requests to place the matter on the trial calendar I sent a detailed e-mail on
Joseph Rizzo, Esq.
1214 W. Boston Post Rd. November 30, 2016 again requesting that any appraisal be sent to our office so as to
#213
Mamaroneck, NY 10543
(914) 560-7007 avoid being precluded. Mr. Cascione responded on December 10, 2016 stating inter alia
“[w]ith regard to Lorraine not having the appraisals I have them.” A copy of the e-mail
exchange is annexed hereto as Exhibit “W”.
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27. Plaintiff and Mr. Cascione continually refused to release the Personal
Property Appraisal to be served on opposing counsel.
28. That the requests to have the matter marked for trial continued until
March 2017. Still not wanting the Personal Property Appraisal released, Mr. Cascione
appeared at the Clerk’s Office of the Westchester County Surrogate’s Court inquiring
whether a Note of Issue had been filed.
29. Over the Deponent’s and Co-Defendant’s objections a Note of Issue
with Certificate of Readiness for Trial was served on March 24, 2017 and filed with the
Westchester County Surrogate’s Court on March 27, 2017 along with a request for a
preference. Copies of the Note of Issue and Request for Preference are annexed hereto
as Exhibit “X”.
30. It was not until five (5) months later, immediately before Labor Day
2017, that Mr. Cascione indicated a willingness to release the Personal Property
Appraisal at which time I advised that the fact he obtained the appraisal in
November/December 2016 and held on to it for over eight (8) months before deciding to
disclose it after the filing of the Note of Issue could be considered an intentional or willful
failure to disclose thereby precluding its use.
31. The suggestion at the time was that it would be better to obtain a
new appraisal to avoid the negative inference associated with the inordinately long delay
Joseph Rizzo, Esq.
1214 W. Boston Post Rd. releasing the report.
#213
Mamaroneck, NY 10543
(914) 560-7007 32. D’Agostino Law Office, P.C. received the Personal Property
Appraisal (Exhibit “S”) on September 20, 2017 and it was forwarded to opposing counsel
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on September 21, 2017. Copies of the express mail envelope received and the Expert
Witness Notice with cover letter to opposing counsel are annexed hereto as Exhibit “Y”.
33. Trial preparation was conducted at Plaintiff’s residence in
Connecticut on two separate days wherein Plaintiff and Mr. Cascione were present. Mr.
Cascione reviewed the Personal Property Appraisal (Exhibit “S”) received by D’Agostino
Law Office, P.C. in detail at that time.
34. As part of the trial preparation we also reviewed the matter of the
pre-trial hearing requested by opposing counsel seeking to preclude. At no time did either
Plaintiff or Mr. Cascione question any aspect of the Personal Property Appraisal.
35. That on October 5, 2017, the date of the hearing, Surrogate Brandon
R. Sall indicated he would allow Mr. Cascione’s testimony based on the Personal Property
Appraisal but reserved decision as to whether to preclude the expert’s report/testimony.
36. That the expert witness Mr. Bernie McManus was present in Court
for the hearing and at no time did he express any concerns regarding the Personal
Property Appraisal to Deponent or the Court.
37. It is important to note that at this time the Surrogate was aware that
the Personal Property Appraisal did not consist of the decedent’s personal property, but
that of the Plaintiff and Mr. Cascione.
38. Any delay in serving a copy of the Personal Property Appraisal
Joseph Rizzo, Esq.
1214 W. Boston Post Rd. rested squarely with Mr. Cascione’s decisions throughout the proceedings. The
#213
Mamaroneck, NY 10543
(914) 560-7007 documentary evidence demonstrates that it was Deponent and Co-Defendants that were
continually requesting Plaintiff and Mr. Cascione to provide any appraisal prior to
certifying the matter trial ready.
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39. Itis respectfully submitted that the inordinate delay by Mr. Cascione
would have resulted in a preclusion hearing regardless of which report was served.
40. Additionally, the Personal Property Appraisal did not cure the major
deficiency that Plaintiff did not have the decedent's property to examine or the fact that
the last time Plaintiff or Mr. Cascione had seen any of decedent's personal belongings in
her possession was a five months prior to her death.
41. For the foregoing reasons and the arguments set forth in the
accompanying Memorandum of Law, I respectfully request that this converted motion for
summary judgment be granted in toto dismissing Plaintiff s action in its entirety and
Co-Defendants'
dismissing Cross-Claims.
Sworn to before me this
13th
day of May 2020
J E H RIZZO
RAYMOND T. SHEPETUK
Public, State of New York
Notary
No. 02SH4884136
Qualified inWestchester Coun ,
Commission Expires January 5,20
JosephRizzo, Esq. This Affidavit was notarized using audio-video technology pu o Executive Order 202.7 as
1214 W. BostonPost Rd. '
extended to June 6, 2020. Deponent was in Dutchess otary wa Wes ·hester
#213
Mamaroneck. NY 10543 COUnty.
(914) 560-7007
A OND T. SHEPET
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Preview
FILED: WESTCHESTER COUNTY CLERK 05/13/2020 03:32 PM INDEX NO. 63376/2018 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/13/2020 SUPREME COURT OF THE STATE OF NEW YORK AFFIDAVIT IN SUPPORT COUNTY OF WESTCHESTER OF SUMMARY -----------------------------------------------------------------------X JUDGMENT LORRAINE CASCIONE, Action No. 2 Plaintiff, Index No. 63376/2018 -against- Motion No. 2 Return Date: June 17, 2020 D’AGOSTINO LAW OFFICE, P.C., CHARLES A. D’AGOSTINO and JOSEPH RIZZO, Assigned Justice: Defendants, Hon. Lawrence H. Ecker -----------------------------------------------------------------------X STATE OF NEW YORK ) COUNTY OF WESTCHESTER ):ss JOSEPH RIZZO, being duly sworn deposes and says: 1. I am the one of the Defendants in the above entitled action and, and as such, I am fully familiar with all of the facts, circumstances, and proceedings heretofore had herein. 2. That by Notice of Motion filed January 7, 2020 and returnable January 29, 2020 deponent moved this Court to dismiss Plaintiff LORRAINE CASCIONE’s cause of action and Co-Defendants’ CHARLES A. D’AGOSTION and D’AGOSTINO LAW OFFICE, P.C.’s Crossclaims in toto. 3. That by Stipulation dated January 13, 2020 the parties agreed to Joseph Rizzo, Esq. 1214 W. Boston Post Rd. #213 adjourn the return date to March 4, 2020 at the request of Plaintiff’s counsel. A copy of Mamaroneck, NY 10543 (914) 560-7007 the stipulation is annexed hereto as Exhibit “I”.1 1 Exhibit lettering is continued pursuant to Justice Ecker’s Court Rule III.F.3. Page 1 of 9 1 of 9 FILED: WESTCHESTER COUNTY CLERK 05/13/2020 03:32 PM INDEX NO. 63376/2018 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/13/2020 4. The Motion to Dismiss was fully submitted on March 4, 2020 and by Court Notice dated April 17, 2020 a telephone conference with all counsel and the Court was conducted on Tuesday, April 21, 2020 at 2PM. A copy of the Court Notice of April 17, 2020 is annexed hereto as Exhibit “J”. 5. Thereafter, by Court Notice dated April 24, 2020 the Court converted the Motion to Dismiss to a Motion for Summary Judgment pursuant to its authority as set forth in CPLR 3211(c) and directed Deponent to submit further affidavits and memoranda of law by May 13, 2020. A copy of the Court Notice of April 24, 2020 is annexed hereto as Exhibit “K”. 6. I submit this Affidavit and accompanying Memorandum of Law in support of the converted motion for Summary Judgment to Dismiss Plaintiff’s action and Defendants’, D’Agostino Law Office, P.C.’s and Charles A. D’Agostino’s (hereinafter the “D’Agostino Defendants”), Crossclaims in toto pursuant to the Court’s April 24, 2020 Notice (Exhibit “K”) and to augment the Affidavit in Support, Affidavit in Reply and Memoranda of Law previously submitted in support of the original Motion to Dismiss. 7. The Plaintiff’s complaint alleging malpractice is solely based on the allegation that Defendants failed to timely disclose “the expert or appraiser's report, which valued the decedent's personal property as of May 18, 2010” (hereinafter the “Personal Property Appraisal” and that Plaintiff learned for the very first time on the date of the trial Joseph Rizzo, Esq. 1214 W. Boston Post Rd. that Deponent “planned to offer into evidence at trial expert reports that has been altered”. #213 Mamaroneck, NY 10543 (914) 560-7007 See Plaintiff’s Complaint (Exhibit “G”) at para. “18.” and “34.” respectively (emphasis added). Page 2 of 9 2 of 9 FILED: WESTCHESTER COUNTY CLERK 05/13/2020 03:32 PM INDEX NO. 63376/2018 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/13/2020 8. Plaintiff further alleges that because of Defendants’ alleged negligence she was forced to settle the matter. See Plaintiff’s Complaint (Exhibit “G”) at para. “39.” and “44.” (emphasis added). 9. In this case the documentary evidence contradicts Plaintiff’s allegations of malpractice in her complaint. Specifically, although Plaintiff’s complaint is based on her allegation that she was forced to settle the matter, the transcript of her voir dire (Exhibit “F”) conclusively negates that allegation. There is no additional evidence alleged that Plaintiff was not aware of at the time of the settlement and voir dire.. 10. It is important to note that the Plaintiff’s husband, Joseph Cascione (hereinafter also referred to as “Mr. Cascione”), was a successful personal injury attorney in New York and is still listed as a licensed attorney registered in the State of New York. 11. The Surrogate’s Court Action was largely controlled by Mr. Cascione which resulted in several disagreements with Charles A. D’Agostino, Esq. who is the sole officer of D’Agostino Law Office, P.C., the attorneys of record on the matter. 12. It was Mr. Cascione that did not take the discovery process seriously as his belief was that the Executor, Plainitff’s brother, in the underlying action would simply fail to show for the hearing for fear of facing Mr. Cascione. 13. In fact, Mr. Cascione was advocating that the matter should be immediately placed on the trial calendar four months before entering into any discovery Joseph Rizzo, Esq. 1214 W. Boston Post Rd. order as follows2: #213 Mamaroneck, NY 10543 (914) 560-7007 2 The first Discovery Order was issued on May 21, 2015 (hereinafter “First Discovery Order”) after a conference was held with the Court on May 20, 2015. A copy of the Discovery Order is annexed hereto as Exhibit “L”. Page 3 of 9 3 of 9 FILED: WESTCHESTER COUNTY CLERK 05/13/2020 03:32 PM INDEX NO. 63376/2018 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/13/2020 a. As early as January 15, 2015 Mr. Cascione was advocating in seeking no further discovery other than bank records and fast tracking the case. A copy of Mr. Cascione’s e-mail dated January 15, 2015 is annexed hereto as Exhibit “M”. b. On February 2, 2015 Mr. Cascione again reiterated that the matter “must be added to the trial calendar”. A copy of Mr. Cascione’s e-mail dated February 2, 2015 is annexed hereto as Exhibit “N”. c. On February 13, 2015 Mr. Cascione again indicated “[w]e need no discovery what we need is a trial date”. A copy of Mr. Cascione’s e-mail dated February 13, 2015 is annexed hereto as Exhibit “O”. d. On February 20, 2015 Mr. Cascione again stated that Plaintiff was “entitled to senior relief for an expedited trial.”A copy of Mr. Cascione’s e-mail dated February 20, 2015 is annexed hereto as Exhibit “P”. 14. As an example of the issues we were having in the discovery process with Mr. Cascione I attach hereto an e-mail exchange from June 29-30, 2015 wherein Co- Defendant Mr. D’Agostino was explaining that monies Plaintiff and Mr. Cascione claimed were wrongly taken were in fact deposited into their account. Additionally, Mr. D’Agostino advised “MORE IMPORTANT is the fact that the discovery you treat so casually is COURT ORDERED.” Copies of the e-mail exchange are annexed hereto as Exhibit “Q”. 15. The First Discovery Order was later stayed on consent due to the fact that Mr. Cascione directed D’Agostino Law Office, P.C. to file a motion seeking to disqualify the Executor’s attorneys. The Executor filed a cross motion seeking to dismiss Joseph Rizzo, Esq. 1214 W. Boston Post Rd. #213 Plaintiff’s objections which resulted in a Decision and Order dated December 14, 2015. A Mamaroneck, NY 10543 (914) 560-7007 copy of the Decision and Order is annexed hereto as Exhibit “R”. Page 4 of 9 4 of 9 FILED: WESTCHESTER COUNTY CLERK 05/13/2020 03:32 PM INDEX NO. 63376/2018 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/13/2020 16. Examinations Before Trial were conducted on August 31, 2016. The Transcript of Examination Before Trial of Plaintiff in the Surrogate’s Court is Action annexed hereto as Exhibit “S”. 17. It was not until three months later in November 2016 that Mr. Cascione procured, arranged for and allegedly paid for the Personal Property Appraisal on his own. Mr. Cascione never provided Defendants with the cost of the Personal Property Appraisal. 18. More importantly, Plaintiff’s allegations that the appraiser’s report “valued the decedent’s personal property as of May 18, 2010”3 is patently untrue. 19. I did meet the appraiser at the Cascione residence in Connecticut on November 23, 2016 and can confirm that he was analyzing the Cascione’s personal property not that of the Decedent. 20. The cover page of the Personal Property Appraisal confirms that it is the “Appraisal of the Property of Mr. and Mrs. Joseph Cascione” which are the Plaintiff and her husband, not the property of the Decedent. A copy of the Personal Property Appraisal is attached hereto as Exhibit “T”. 21. The Accounting provided by the Executor in the Surrogate’s Court Action did not list any jewelry and only assorted miscellaneous furniture with a total value of $1,018.00. A copy of the Accounting is annexed hereto as Exhibit “U”. Joseph Rizzo, Esq. 1214 W. Boston Post Rd. 22. The last time that Plaintiff was in the Decedent’s home was on #213 Mamaroneck, NY 10543 (914) 560-7007 Christmas Eve of 2009 and the Decedent died in May 2010 at which time Plaintiff claimed 3 See Plaintiff’s Complaint (Exhibit “G”) at para. “18.” Page 5 of 9 5 of 9 FILED: WESTCHESTER COUNTY CLERK 05/13/2020 03:32 PM INDEX NO. 63376/2018 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/13/2020 to have been denied access to the property. See Transcript of Examination Before Trial of Plaintiff (Exhibit “R”) at p.11, ln. 1-5, p. 16, ln. 18-24. 23. Accordingly, Plaintiff had not seen any of the Decedent’s jewelry or personal property since December of 2009, nearly eight (8) years prior to the scheduled hearing on the matter and five (5) months prior to Decedent’s date of death. 24. Plaintiff’s husband, Joseph Cascione, planned to testify that all the furniture and jewelry that was appraised was identical to, or similar to, the Decedent’s, so, in fact, Plaintiff did not have Decedent’s property to appraise. Accordingly, it was far from certain whether the Court would determine that the Decedent was in possession of any of the items at the time of her death, let alone attribute the appraised value to the Decedent’s property. 25. Again in an e-mail exchange with Plaintiff between September 11- 13, 2016 Plaintiff again reiterated her request to obtain “a trial date as soon as possible” and again I advised I would need any photographs and appraisals “relatively immediately or we run the risk they will be precluded by the Court.” Plaintiff responded “we have supplied all the information we have .please obtain as early as possible trial date.” A copy of the e-mail exchange is annexed hereto as Exhibit “V”. 26. That two months later in response to Plaintiff’s and Mr. Cascione’s continued requests to place the matter on the trial calendar I sent a detailed e-mail on Joseph Rizzo, Esq. 1214 W. Boston Post Rd. November 30, 2016 again requesting that any appraisal be sent to our office so as to #213 Mamaroneck, NY 10543 (914) 560-7007 avoid being precluded. Mr. Cascione responded on December 10, 2016 stating inter alia “[w]ith regard to Lorraine not having the appraisals I have them.” A copy of the e-mail exchange is annexed hereto as Exhibit “W”. Page 6 of 9 6 of 9 FILED: WESTCHESTER COUNTY CLERK 05/13/2020 03:32 PM INDEX NO. 63376/2018 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/13/2020 27. Plaintiff and Mr. Cascione continually refused to release the Personal Property Appraisal to be served on opposing counsel. 28. That the requests to have the matter marked for trial continued until March 2017. Still not wanting the Personal Property Appraisal released, Mr. Cascione appeared at the Clerk’s Office of the Westchester County Surrogate’s Court inquiring whether a Note of Issue had been filed. 29. Over the Deponent’s and Co-Defendant’s objections a Note of Issue with Certificate of Readiness for Trial was served on March 24, 2017 and filed with the Westchester County Surrogate’s Court on March 27, 2017 along with a request for a preference. Copies of the Note of Issue and Request for Preference are annexed hereto as Exhibit “X”. 30. It was not until five (5) months later, immediately before Labor Day 2017, that Mr. Cascione indicated a willingness to release the Personal Property Appraisal at which time I advised that the fact he obtained the appraisal in November/December 2016 and held on to it for over eight (8) months before deciding to disclose it after the filing of the Note of Issue could be considered an intentional or willful failure to disclose thereby precluding its use. 31. The suggestion at the time was that it would be better to obtain a new appraisal to avoid the negative inference associated with the inordinately long delay Joseph Rizzo, Esq. 1214 W. Boston Post Rd. releasing the report. #213 Mamaroneck, NY 10543 (914) 560-7007 32. D’Agostino Law Office, P.C. received the Personal Property Appraisal (Exhibit “S”) on September 20, 2017 and it was forwarded to opposing counsel Page 7 of 9 7 of 9 FILED: WESTCHESTER COUNTY CLERK 05/13/2020 03:32 PM INDEX NO. 63376/2018 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/13/2020 on September 21, 2017. Copies of the express mail envelope received and the Expert Witness Notice with cover letter to opposing counsel are annexed hereto as Exhibit “Y”. 33. Trial preparation was conducted at Plaintiff’s residence in Connecticut on two separate days wherein Plaintiff and Mr. Cascione were present. Mr. Cascione reviewed the Personal Property Appraisal (Exhibit “S”) received by D’Agostino Law Office, P.C. in detail at that time. 34. As part of the trial preparation we also reviewed the matter of the pre-trial hearing requested by opposing counsel seeking to preclude. At no time did either Plaintiff or Mr. Cascione question any aspect of the Personal Property Appraisal. 35. That on October 5, 2017, the date of the hearing, Surrogate Brandon R. Sall indicated he would allow Mr. Cascione’s testimony based on the Personal Property Appraisal but reserved decision as to whether to preclude the expert’s report/testimony. 36. That the expert witness Mr. Bernie McManus was present in Court for the hearing and at no time did he express any concerns regarding the Personal Property Appraisal to Deponent or the Court. 37. It is important to note that at this time the Surrogate was aware that the Personal Property Appraisal did not consist of the decedent’s personal property, but that of the Plaintiff and Mr. Cascione. 38. Any delay in serving a copy of the Personal Property Appraisal Joseph Rizzo, Esq. 1214 W. Boston Post Rd. rested squarely with Mr. Cascione’s decisions throughout the proceedings. The #213 Mamaroneck, NY 10543 (914) 560-7007 documentary evidence demonstrates that it was Deponent and Co-Defendants that were continually requesting Plaintiff and Mr. Cascione to provide any appraisal prior to certifying the matter trial ready. Page 8 of 9 8 of 9 FILED: WESTCHESTER COUNTY CLERK 05/13/2020 03:32 PM INDEX NO. 63376/2018 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/13/2020 39. Itis respectfully submitted that the inordinate delay by Mr. Cascione would have resulted in a preclusion hearing regardless of which report was served. 40. Additionally, the Personal Property Appraisal did not cure the major deficiency that Plaintiff did not have the decedent's property to examine or the fact that the last time Plaintiff or Mr. Cascione had seen any of decedent's personal belongings in her possession was a five months prior to her death. 41. For the foregoing reasons and the arguments set forth in the accompanying Memorandum of Law, I respectfully request that this converted motion for summary judgment be granted in toto dismissing Plaintiff s action in its entirety and Co-Defendants' dismissing Cross-Claims. Sworn to before me this 13th day of May 2020 J E H RIZZO RAYMOND T. SHEPETUK Public, State of New York Notary No. 02SH4884136 Qualified inWestchester Coun , Commission Expires January 5,20 JosephRizzo, Esq. This Affidavit was notarized using audio-video technology pu o Executive Order 202.7 as 1214 W. BostonPost Rd. ' extended to June 6, 2020. Deponent was in Dutchess otary wa Wes ·hester #213 Mamaroneck. NY 10543 COUnty. (914) 560-7007 A OND T. SHEPET Page 9 of 9 9 of 9