Amy Lynn Pludwin, an attorney duly admitted to practice law. before the Courts of New York State, hereby affirms under the

Transcription

1 FILED: NEW YORK COUNTY CLERK 02/03/ :06 PM INDEX NO /2014 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 02/03/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x ANTHONY CARDINALE AND KATHLEEN CARDINALE, Index No.: /14 (ECF) Plaintiffs, v. PCV ST OWNER LP, ST OWNER LP AND OTIS ELEVATOR COMPANY, AFFIRMATION IN OPPOSITION Defendants x Amy Lynn Pludwin, an attorney duly admitted to practice law before the Courts of New York State, hereby affirms under the penalties of perjury pursuant to CPLR I am an attorney associated with the firm of Hoey, King, Epstein, Prezioso & Marquez, attorneys for the Defendants PCV ST Owner LP and ST Owner LP. 2. That your affirmant submits the following statement upon information and belief, based upon an inspection of the records maintained by said attorney, which records your affirmant believes to be true. This affirmation is submitted in opposition to Plaintiff s motion which seeks to compel a deposition of a further witness (Corporal Brugaletta) from defendants PCV ST Owner LP and ST Owner LP. 3. Plaintiff has failed to submit any admissible evidence to show that the prior witness produced for a deposition on behalf of PCV ST Owner LP and ST Owner LP, (hereinafter

2 PCV )and the non-party witness who was previously employed by PCV, had insufficient knowledge, nor has Plaintiff submitted any admissible evidence to show that there is a substantial likelihood that Mr. Brugaletta possess information which is material and necessary to the prosecution of his case, and therefore it is respectfully submitted that Plaintiff s motion to compel Mr. Brugaletta s deposition must be denied. See Zollner v City of New York, 204 A.D.2d 626, (2 nd Dept. 1994). 4. PCV has complied with court orders, provided discovery, and produced a witness with knowledge for a deposition, that being Mr. Danny Fabara, the building porter. It is respectfully submitted that PCV should not have to submit to any further depositions at this time as Plaintiff has failed to make a prima facie showing that he would be entitled to same. See Zollner, supra. 5. PCV previously produced a witness, Danny Fabara, for a deposition, on 5/19/15. A copy of the 257 page deposition transcript is annexed hereto as Exhibit F. Plaintiff s counsel was present at said deposition, questioned Mr. Fabara at length, and obtained a full and complete deposition of PCV at that time. Mr. Fabara was the janitor at the premises where the accident is alleged to have occurred. (See Exhibit F Page 6.) He had complete knowledge concerning the building, the accident location, and cleaning responsibilities. Mr. Fabara policed

3 the buildings at 535 and 545, and performed general clean-up activities of the common areas (Id. at P ) He has been working there since 2002, (Id. at P. 20), over 10 years prior to the alleged accident. In fact, Mr. Fabara testified that he came upon the Plaintiff at the scene of the accident and assisted him off the ground, (Id. at P. 55) he reported the matter to security, he provided a statement, (Id. at P. 61) and he cleaned up the area where the accident is alleged to have occurred, (Id. at P. 64). Mr. Fabara never heard of Corporal Brugaletta, or of Jean Pierre (Id. at P ) and doesn t know if Corporal Brugaletta took any photos. (Id. at P. 74) Mr. Fabara was the ideal deponent for a deposition and his deposition testimony was sufficient. 6. Thereafter Plaintiff requested a further witness from PCV. On 8/18/15 an order was issued (annexed as Exhibit C to Plaintiff s motion) directing PCV to produce a witness on 10/5/15 as per Plaintiff s notice of 6/4/15. Plaintiff s notice of 6/4/15 sought to take the deposition of an employee who took the photographs of the scene of the occurrence immediately following the occurrence. (A copy of the 6/4/15 notice is annexed hereto as Exhibit A.) 7. Your affirmant then learned that the PCV employee who was believed to have taken the photos, Jean Pierre, was no longer employed by PCV. Accordingly, your affirmant could not

4 produce Mr. Pierre as he was no longer employed by PCV and thus not under PCV s control. Your affirmant then provided Mr. Pierre s last known contact information to all counsel via correspondence on September 9, (A copy of the correspondence is annexed hereto as Exhibit B. ) Had Mr. Pierre still been employed by PCV, then he would have been produced on behalf of PCV as per the directives of the 8/18/15 court order. 8. Plaintiff then subpoenaed Mr. Pierre for a non-party deposition. A copy of Mr. Pierre s transcript is annexed hereto as Exhibit C.) Said deposition was held on October 26, At the deposition, Mr. Pierre, a former public safety officer with PCV, (See Exhibit C, P. 5) testified that he filled out the field accident report relative to the alleged accident. (Id. at P. 9-10) Mr. Pierre also took a statement from the Plaintiff. (Id. at P. 12) When asked if he took the photos of the scene, he specifically testified, that he did not recall. I mean, I I don t recall, to be honest with you. (Id. at P.14 lines 5-9.) He also testified that he didn t recall if Corporal Brugaletta took photos of the scene, or if Corporal Brugaletta ever told him that he took photos of the scene and that generally the procedure was for either the supervisor or the officer on the scene to take photos. (Id. at P Lines 15-3.)

5 9. It is clear from Mr. Pierre s testimony that he has no recollection as to who took the photos, and in fact, based on his own testimony, it could have been Mr. Pierre himself who took the photos as he spoke to Plaintiff, completed an incident report, and testified that either the officer (himself) or a supervisor would take photos. 10. There has been absolutely no evidence or testimony to support any contention that Corporal Brugaletta took photos at the scene of the accident. 11. Following Mr. Pierres deposition, Plaintiff s counsel noticed the deposition of Corporal Brugaletta via Notice to Take Deposition dated 11/2/15. (Notice annexed hereto as Exhibit D. ) 12. Your affirmant immediately responded to said notice via , on 11/5/15, objecting to the notice and stating that Mr. Brugaletta would not be produced for a deposition. (See chain annexed hereto as Exhibit E ) Plaintiff s counsel erroneously stated in a responsive to your affirmant that the testimony (of Mr. Pierre) clearly shows that Brugaletta was there and was the one who took the photos. See Exhibit E supra. Plaintiff s counsel s assertion is clearly belied by Mr. Pierre s sworn testimony which was set forth above. Plaintiff s counsel entirely mischaracterized Mr. Pierre s testimony. As set forth above, Mr. Pierre has no recollection as to who took

6 the photos and very possibly could have taken the photos himself, and testified that he didn t recall if he personally took the photos. Of import, your affirmant then offered (in the 11/5/15 to Plaintiff s counsel) to provide an affidavit from Corporal Brugaletta setting forth that Mr. Brugaletta did not take the photos, however, Plaintiff s counsel refused to accept same and motion practice ensued. See Exhibit E supra. 13. Clearly the language in the case management order of 12/2/15 (Annexed as Exhibit D to plaintiff s motion) which states that PCV did not comply with the order of 8/18/15 in that PCV did not produce a witness for deposition, is inaccurate. The 8/18/15 order (annexed as Exhibit C to Plaintiff s motion) directed PCV to produce a witness on 10/5/15 as per Plaintiff s notice of 6/4/15 which sought to take the deposition of an employee who took the photographs of the scene of the occurrence immediately following the occurrence. (See Notice, Exhibit A, supra.) PCV intended to produce Mr. Pierre, however, could not do so because Mr. Pierre was no longer employed. Accordingly PCV provided Mr. Pierre s last known contact information to all counsel. Plaintiff is now seeking a deposition of Corporal Brugaletta, without any basis for Mr. Brugaletta s deposition, as Mr. Pierre clearly testified that he didn t recall who took the photos. There is no evidence or testimony that Mr. Brugaletta took any photos. Furthermore your affirmant has

7 offered to provide an affidavit from Mr. Brugaletta setting forth that Mr. Brugaletta did not take the photos. 14. It is axiomatic that your affirmant is not in violation of an order directing compliance with Plaintiff s June notice seeking a witness who took the photos for a deposition when the witness who is believed to have taken the photos (Mr. Pierre) is no longer employed by PCV, and when there is no evidence that Mr. Brugletta took any photos and your affirmant proposed submitting an affidavit to that effect! 15. In the case at bar, plaintiff has failed to show that Mr. Fabara and Mr. Pierre had insufficient knowledge or were otherwise inadequate, and that the proposed witness, Mr. Brugaletta, possesses information which is material and necessary to the prosecution of the case, and therefore his motion to compel a further deposition should be denied. See Barone v Great Atlantic & Pacific Tea Company Inc., 2 nd Dept In order to show that additional depositions are necessary, the moving party must show (1) that the representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution

8 of the case, See Zollner v City of New York, 204 A.D.2d 626, (2 nd Dept. 1994). 17. In the case at bar plaintiff has failed to make such a showing. Plaintiff has failed to make out a prima facie case that he is entitled to a further deposition of PCV by Corporal Brugaletta. Plaintiff has failed to show that Mr. Fabara was a witness with insufficient knowledge, or that Mr. Pierre did not possess sufficient knowledge. As set for the above, PCV produced Mr. Fabara, the building porter who was familiar with the premises, was present at the scene of the accident with Plaintiff, contacted and reported to security as to what occurred, and then cleaned up the area! 18. Furthermore, the fact that your affirmant proposed to submit an affidavit from Mr. Brugaletta regarding the photos, setting forth that Mr. Brugaletta did not take the photos, clearly demonstrates that Mr. Brugaletta is not a witness who possess information that is material to this matter. 19. See Besen v C.P.L. Yacht Sales Inc. 34 A.D.2d 789 (2 nd Dept. 1970) where the plaintiff failed to allege specifically the nature of the inadequacy of the witness first produced by the defendant, and the relationship of that inadequacy to plaintiff's causes of action, and therefore the Court held that plaintiff's motion seeking a further deposition should have been denied.

9 20. It must be noted that your affirmant expeditiously, upon receipt of the Plaintiff s notice seeking Corporal Brugaletta s deposition, contacted Plaintiff s counsel and objected to same in writing, via . (Exhibit E supra). Accordingly, for Plaintiff to represent to the court that PCV s failure to move for a protective order seeking to deny Plaintiff the opportunity to depose Mr. Brugaletta forecloses inquiry into the proprietary of the information sought, is entirely improper, without merit, and belied by the annexed hereto. See Exhibit E supra. 21. It is also entirely unclear how Plaintiff could claim that Mr. Fabara and Mr. Pierre were insufficient witnesses based on their relevant testimony above. WHEREFORE, based on all the admissible evidence and testimony set forth above, your affirmant prays for an Order denying the Plaintiff s motion seeking to compel a deposition of Corporal Brugaletta as Plaintiff has failed to make a prima facie showing that he is entitled to such a deposition, and for such other and further relief as the Court deems just and proper. DATED: February 2, 2016 New York, New York Amy Lynn Pludwin

10 Index No.: /14 (ECF) SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ANTHONY CARDINALE AND KATHLEEN CARDINALE, against Plaintiffs, PCV ST OWNER LP, ST OWNER LP AND OTIS ELEVATOR COMPANY, Defendants. AFFIRMATION IN OPPOSITION HOEY, KING, EPSTEIN, PREZIOSO & MARQUEZ Attorneys for Defendant PCV ST Owner LP and ST Owner, LP. Office and Post Office Address 55 Water Street, 29th Floor New York, New York (212)