March 30, Re: Bartolone v. Air & Liquid Systems Corporation, et al. NYCAL Index No. 2014/190398

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1 BY ELECTRONIC FILING Honorable Cynthia Kern New York County Supreme Court 60 Centre Street New York, New York East 27th Street, 12th Floor, New York, New York P: F: March 30, 2016 Re: Bartolone v. Air & Liquid Systems Corporation, et al. NYCAL Index No. 2014/ Dear Justice Kern: We write on behalf of Defendant Union Carbide Corporation ( Union Carbide ) to oppose Plaintiff s Motion in limine (the Motion ) regarding the admissibility of a set of invoices demonstrating the shipment of raw amphibole asbestos through the Brooklyn piers during the years when Mr. Bartolone worked there. Plaintiff seeks to exclude nearly five hundred pages of documents, dating between and 1978, that demonstrate the shipment of massive quantities of amphibole asbestos by the North American Asbestos Corp. ( NAAC ) through the specific piers where Mr. Bartolone worked, during the specific years when he worked there (the Invoices ). Although not mentioned in Plaintiff s Motion, this Court has already ruled on and rejected a substantial number of the arguments that she makes, and the remainder are unavailing. After failing to present any evidence at any point in her case that Union Carbide s asbestos-containing products were ever shipped through Brooklyn, Plaintiff now seeks to exclude the first evidence the jury will see showing asbestos shipments that actually went through Brooklyn based in large part on the suggestion that such evidence is somehow irrelevant. Plaintiff s transparent attempt to keep the jury from learning what products actually caused Mr. Bartolone s mesothelioma should be denied. I. Plaintiff s Motion Is Inexcusably Untimely. As an initial matter, Plaintiff s Motion is untimely. Plaintiff has had copies of these Invoices since well before trial began. Although Plaintiff filed a motion in limine to preclude Union Carbide s experts from relying on these invoices, which was denied (Plaintiff s MIL No. 3), Plaintiff chose not to file the instant Motion until a month into trial. During that time, Union Carbide repeatedly 1 One document describes shipments in the first quarter of of 10

2 referenced NAAC and the Invoices, without objection, in voir dire (Ex. A, Feb. 29, 2016 Trial Tr. at 24:10-25:9; Ex. B, March 7, 2016 Trial Tr. at 18:23-19:8), opening statements (Ex. C, March 14, 2016 Trial Tr. at 84:24-85:5), and during cross-examination (Ex. D, March 18, 2016 Trial Tr. at 742:4-743:10). Plaintiff cites no newly discovered evidence or newly raised issue that would warrant such a delay in filing this Motion. Union Carbide gave notice to Plaintiff that it was offering the Invoices as business records certified by a Rule 3122-a affidavit on January 29, Ex. E (January 29, 2016 Notice of Intent). Despite knowing that Union Carbide intended to offer these documents in evidence 30 days before trial, as required by the rule, Plaintiff waited almost two months before substantively objecting to these documents. Under N.Y. C.P.L.R a(c) Plaintiff was required to object to this certification no later than ten days prior to trial. While Plaintiff did object, this objection was merely procedural and claimed that Union Carbide s notice was untimely in that it was not provided thirty days before trial. This is plainly inaccurate; Union Carbide s notice was provided on January 29, 2016 and trial in this case commenced on February 29, The consequences for failure to object are clear: [u]nless objection is made pursuant to this subdivision [the records] shall be deemed admissible as business records. Id. 2 Accordingly, Plaintiff s failure to object resulted in waiver and, by February 19 th, the Invoices were deemed admissible business records under Rule 3122-a. Plaintiff had a second chance to object during the motions in limine practice ordered by the Court on February 29, Although Plaintiff tried unsuccessfully to prevent Union Carbide s experts from relying on the Invoices in her MIL No. 3, Plaintiff chose not to move to preclude the Invoices themselves. 3 Ex. F (Plaintiff s MIL Letter). Instead, in an inexplicable footnote, Plaintiff states that she would move to preclude the Invoices at the appropriate time (id. at FN 14), utterly ignoring that the appropriate time had already passed. 4 The Invoices were addressed at the motions in limine hearing held on March 4 th. Counsel for Union Carbide unequivocally stated that [w]e provided [the certification] to plaintiff consistent with the business record certification rule 30 days in advance of trial. To date we have not received any sort of formal objection from plaintiff to these, to the records and certification. Ex. G (March 4, 2016 Trial Tr.), at 80:10-80:15. The Court ruled the Invoices admissible contingent on proper authentication or certification. Id. at 82:7-12. Nevertheless, Plaintiff still did not file any sort of motion or objection related to the Invoices, whether on grounds of authentication or relevance. Although the Court has allowed motions in limine to be filed in this case after the February 29 th deadline on limited occasions, the Court has encouraged such motions only when a party discovers 2 Plaintiff s Motion does not suggest that she has recently discovered new evidence which could not have been discovered by the exercise of due diligence prior to the time for objection otherwise required. N.Y. C.P.L.R a(c). Thus, she cannot evade waiver on this basis. 3 As discussed further in Section II, Plaintiff telegraphed an intent to use similar invoices related to Union Carbide s shipments to Kentile. These invoices were not accompanied by a Rule 3122-a certification. Accordingly, Union Carbide timely moved to exclude these documents on February 29 th as part of its Motion in Limine No. 13 to Preclude Evidence Related to UCC s Calidria Asbestos Business After Ex. G at 64:6-71:4. Plaintiff could have and should have done the same. 4 In Footnote 14, Plaintiff also argues that Union Carbide concedes that the Invoices cannot be authenticated. Ex. F at 3, n.14. This is untrue; Union Carbide never made such a concession. 2 2 of 10

3 new evidence or information that could not have been known prior to February 29 th for example, when a party discloses a new subject of expert testimony or when a party discloses that it intends to introduce a document into evidence for the first time 48 hours in advance. Ex. H (March 17, 2016 Trial Tr.) at 600:13-19 (not faulting a late objection where new issues [are] coming up ); Ex. I (March 16, 2016 Trial Tr.) at 220:12-15 ( that s the whole purpose of the in limine motions, is to do it before the trial starts in a less hurried manner ). But Plaintiff has had these Invoices, and has known exactly how Union Carbide intended to use them at trial, for months. She does not contend that any new issue has prompted the belated filing of this Motion, nor was this Motion prompted by any recent action by Union Carbide. There is no reason Plaintiff was unable to object to these Invoices on a timely basis so that both parties could plan their trial strategies appropriately. Plaintiff s strategy is a transparent attempt to sandbag Union Carbide by allowing it to repeatedly refer to the Invoices during trial, without objection, before moving to preclude them. But deadlines exist to prevent just this sort of abusive behavior. Plaintiff should have moved to preclude these Invoices prior to trial, or, at least, prior to opening statements. Plaintiff s failure to do so results in a waiver of her objection. See Pilon v. Pilon, 278 A.D.2d 760, 760 (3d Dep t 2000) ( Where no timely objection is made, evidence offered at trial is presumed to have been unobjectionable and any alleged error is considered waived. ). This Court should not reward Plaintiff s dilatory behavior by excluding facially relevant evidence that Union Carbide has repeatedly previewed to the jury without objection. The Court should not countenance this kind of gamesmanship, and Plaintiff s Motion should be denied. II. The NAAC Invoices Are Directly Relevant And Cause No Undue Prejudice At All. A. This Court Has Already Ruled That The Invoices Are Relevant. As discussed above, this Court has already ruled the Invoices admissible, provided that they are properly certified or authenticated. Ex. G at 82:7-12 ( Stop. I am happy to make a separate ruling about whether these documents are admissible on the grounds that they are not properly authenticated or certified. Let s separate that out. But as a general proposition, if they are properly certificated I find they would be admissible. ). Plaintiff s Motion is a belated attempt to relitigate an issue that this Court ruled on nearly a month ago. As the chart below makes clear, in the course of denying Plaintiff s MIL No. 3 to Preclude UCC s Experts From Offering Speculative Testimony, the Court considered and rejected many of the arguments she makes here: 3 3 of 10

4 Plaintiff s Motion Argument Bartolone did not testify to loading [blue asbestos] during this time [when he was working]. Motion at 3. [H]ad Plaintiff wanted to claim exposure using the exact evidence UCC attempts to use here, Plaintiff would not have been permitted under New York law to proceed. Motion at 4 (citing Cawein v. Flintkote). Speculative or conjectural evidence used to establish a circumstantial case in products liability is insufficient under the law. Motion at 4. Plaintiff s Argument At March 4 th Hearing There is no testimony from Mr. Bartolone about any of this. There is no testimony from Mr. Campanella. Ex. G at 76:24-77:3. I would not be able to survive summary judgement just by placing a shipping document at a place where my client never testified having been exposed to that. Ex. G at 77:11-21 (citing Cawein v. Flintkote). [M]ere placement of an asbestos-containing product at a work-site is not enough to survive summary judgment. There has to be a connection to exposure. Ex. G at 77:11-21 (citing Cawein v. Flintkote). The Court s March 4 th Ruling You don t need testimony from them. As long as there is any evidence to support it if there is some evidence to support that those goods were shipped through these shipyards during the time period he worked there, it would be relevant. Ex. G at 77:4-77:10 [Y]our whole argument is that the asbestos was flying as these products were being brought through. If that s true, that sounds like it s enough circumstantial evidence of an actual exposure which is what a lot of these plaintiff cases rely on. Ex. G at 78:7-11. A lot of what happens in these is asbestos cases is very circumstantial in terms of identification If it was coming through the shipyard, everybody was being exposed to it. Ex. G at 77:23-78:6. The Court s ruling that, issues of authentication or certification aside, the Invoices are admissible is consistent with a similar ruling the Court made with respect to the Kentile invoices proffered by Plaintiff. Union Carbide sought to exclude these invoices (showing shipments of Calidria asbestos from Union Carbide to Kentile, a customer located in Brooklyn) on grounds similar to what Plaintiff argues here the invoices showed shipments by container, failed to identify any specific pier in New York, and were limited to a time period when there was no arguable identification of a product that looked like Calidria. Nevertheless, this Court deemed the invoices admissible, stating It s some evidence.so I find it admissible. Ex. G at 70:23-71: of 10

5 The sum total of this Court s rulings on the invoices that both sides sought to admit in this case establishes a framework for considering and admitting historical shipping records. If there is some evidence to support that these goods were being shipped through these shipyards during the time period he worked there, it would be relevant. Id. at 77:7-11. Plaintiff now seeks to upend this framework by attempting to relitigate an issue she has already lost. B. Even If This Court Had Not Already Ruled, The Invoices Are Relevant. The Invoices are clearly relevant to this case in fact, they straightforwardly explain the cause of Mr. Bartolone s mesothelioma. Unbelievably, in the course of arguing that the NAAC Invoices are irrelevant, Plaintiff admits that the Invoices demonstrate eight 5 shipments of well over a hundred tons of non-containerized raw amphibole asbestos to a specific pier where Mr. Bartolone testified he worked, during the specific years that he testified that he worked there. Such evidence is clearly relevant to demonstrating to the jury what actually caused Mr. Bartolone s disease. Mr. Bartolone s testimony demonstrates the relevance of the Invoices. Mr. Bartolone testified that he worked with a wide variety of products, many of which he does not remember or did not identify during his deposition: Q. What other types of products in your nine years at Pier 2 did you take on and put off ships? A. There was a lot of products. I don t remember. Q. Well, what types of products were they? A. Everything * * * Q. Is there anything else you can remember? A. Anything you see in the store, anything you see in United States. Q. There was no other types of products as you sit here today that you can remember unloading, loading and unloading, other than what you ve already told me? A. Oh, there is a lot of things. Ex C at 144:3-145:9 (emphasis added). Mr. Bartolone also testified about the dusty nature of his working conditions: Q. Well, first of all, do you believe you personally worked with any asbestos-containing products? A. First of all, the ship, they come in and they come out, was dust all the time, all over. No matter where you work it was dusty, black dust, things like that. I don t know. I just working there. And that s it. 5 Plaintiff s math is incorrect. For instance, Plaintiff s Motion claims that Mr. Bartolone ceased working on Pier 5 during However, Mr. Bartolone testified that he started working in October or November of 1963 and worked at Pier 5 for the first nine years of his career, meaning he would have stopped working at Pier 5 in late Ex. C at 116:21-117:4, 128:7-128:15. Additional invoices, unacknowledged by Plaintiff, demonstrate more shipments of many tons of additional raw amphibole asbestos through Pier 5 during this timeframe. See Ex. J (1971 Subset of Invoices). 5 5 of 10

6 Q. This would be on all the ships? A. Most of the ships, they were dirty. There is no clean ship. Id. at 157:11-21 (emphasis added). And he testified as to the source of the dust he encountered while working on ships: Q. Is this dust coming from the ship itself or was this dust coming from the cargo or something else? A. Some from the cargo, some from pick it up. I don t know. Q. Would this have been the same on the ships at Pier 2 or are we just talking about 39th Street? A. All over. All the ship is the same. Id. at 158:12-21 (emphasis added). Mr. Bartolone s testimony demonstrates that (1) he loaded and unloaded a variety of cargo that he does not remember or did not name, (2) that the ships he worked on were constantly dusty, and (3) that at least some of this dust came directly from the cargo that he was loading and unloading. The Invoices fill in a key gap for the jury they demonstrate that amphibole asbestos was among the products that were shipped through the piers where Mr. Bartolone worked, while he worked there. As this Court recognized nearly a month ago, the jury is entitled to consider evidence of what products were shipped through the piers where Mr. Bartolone worked. If this Court had not already rejected Plaintiff s argument that the Invoices are irrelevant, it would have good reason to do so now. C. Plaintiff s Categorizations Of The Invoices Are Unhelpful. Plaintiff argues that several sub-categories of documents contained within the Invoices are irrelevant. For instance, Plaintiff argues that documents showing shipments arriving in New York generally are irrelevant and purports to attach these documents as Exhibit 6. 6 This is a surprising argument in light of the fact that Plaintiff previously argued vociferously that invoices showing sales of Union Carbide asbestos to Kentile in Brooklyn were admissible, despite these invoices not specifying a port of discharge. 7 Ex. G at 69:5-25. The Court ruled that these invoices were admissible. Id. at 70:16-71:2. Having successfully argued the admissibility of invoices showing shipments to the New York area generally, but without evidence that the shipments were discharged in Brooklyn specifically, Plaintiff cannot now seriously argue that Union Carbide should be prohibited from using identical evidence. 6 Plaintiff s assertions regarding the contents of Exhibit 6 are inaccurate. As an illustration, Plaintiff s Exhibit 6 contains a document numbered NAAC It is true that this document does not specify delivery to a particular pier. Plaintiff fails to note, however, that this documents refers to and provides additional information about the shipment of asbestos mentioned in NAAC , which specifies that the asbestos was delivered to Pier 5. See Ex. J at NAAC , The Kentile shipments were in fact unloaded at Howland Hook in Staten Island. 6 6 of 10

7 Plaintiff also argues that documents showing shipments arriving in containers are irrelevant and attaches these documents as Exhibit 7. Again, this is a surprising argument for Plaintiff to make, given that Plaintiff has alleged exposure to ocean shipments of Calidria asbestos despite the existence of substantial evidence that such shipments were made in containers. See, e.g., Ex. K (September 7, 1971 Union Carbide Letter, UCC-BAK-320), Ex. L (February 23, 1978 Union Carbide Memorandum, UCC-TRP-00009). In fact, Plaintiff survived summary judgment in this case in large part by pointing to invoices demonstrating that Union Carbide shipped Calidria to New York in containers. 8 See id., Ex. M (February 22, 2016 Summary Judgment Decision & Order at 5). Plaintiff argues that some of the Invoices reflect shipments to non-new York piers and attaches these purported documents to her motion as Exhibit 5. This argument, however, reflects a misunderstanding of the documents. A simple illustration will show why. Exhibit 5 contains, by way of example, documents marked as NAAC , each of which reflects shipments to a non-new York port. What Plaintiff fails to draw to the Court s attention is the fact that these pages are part of a larger document. The full document encompasses pages NAAC , and consists of a letter which encloses several invoices, some of which reflect shipments to New York and others of which do not. See Ex. N (Subset of Invoices marked NAAC ). The document therefore constitutes some evidence, which the jury is entitled to consider. D. Plaintiff s Arguments Contradict Her Own Theory Of The Case. Plaintiff argues that the Invoices invite the jury to speculate. This argument is puzzling in light of the case that Plaintiff is presenting to the jury. For instance, Plaintiff told the jury in opening that [w]e will also show you that one of Union Carbide s biggest customers in the late 1970s was just a few blocks away, the Kentile plant, and similarly argued that the presence of Calidria at Kentile s plant was relevant, despite the fact that Kentile is roughly a little under a mile away from these piers. Ex. C at 43:14-16; Ex. G at 69: It is hard to square Plaintiff s apparent belief that the existence of a Union Carbide customer in the same borough as Plaintiff s workplace is relevant, while the presence of hundreds of tons of raw amphibole asbestos at Plaintiff s actual workplace is not. Similarly, it is hard to follow Plaintiff s assertion that, on the one hand, NAAC Invoices showing shipments of raw asbestos through the New York piers are irrelevant, while on the other hand, Plaintiff s general evidence regarding Union Carbide Calidria distributors is relevant. Plaintiff argued in opening that Union Carbide is going to admit approximately 25 percent of all Calidria sales they don t have records for, and has now read interrogatory responses to that effect. 9 Ex. C at 54:16-18, Ex. O (March 28, 2016 Trial Tr.) at 945: Plaintiff s argument is essentially that distributors could have shipped asbestos anywhere, that the universe of anywhere encompasses the Brooklyn piers, and that the jury should therefore conclude that Calidria was shipped through the Brooklyn piers. In contrast, invoices demonstrating shipments of amphibole asbestos through 8 Notwithstanding the fact that these shipments never passed through the Brooklyn Piers. 9 Plaintiff s distributor argument is misguided and confuses a lack of records of sales with a lack of knowledge of sales. Union Carbide will present evidence regarding its knowledge of distributor sales during its case in chief. 7 7 of 10

8 New York at least place that asbestos within the small universe of New York piers. The argument that it could have been anywhere, therefore it may have been in Brooklyn is substantially more speculative than the argument it was at a New York port, therefore it may have been in Brooklyn. E. Admitting The NAAC Invoices Will Not Cause Any Undue Prejudice. The Invoices are plainly relevant. Plaintiff s last remaining argument is that the documents are unduly prejudicial indeed, she claims that the prejudicial effect of admitting any documents for Pier 5 cannot be overstated. Plaintiff is incorrect. Evidence is unduly prejudicial to a party when it creates a tendency to influence the outcome of a trial on an emotional basis, or when it appeals to a jury s sympathies, arouses their sense of horror, provokes their instinct to punish, or has a strong emotional or inflammatory impact, not when it is merely factually unfavorable to the other party s case. See Am. Jur. 2d, Evidence 338; see also Hairston v. Metro-North Commuter R.R., 786 N.Y.S.2d 890, 892 (N.Y. Sup. Ct. 2004) ( Admission of evidence favorable to one party and damaging to another naturally can cause prejudice to the latter. The standard, however, is not prejudice but undue prejudice. ). The Invoices at issue here are the farthest thing from inflammatory or emotionally fraught they are bills of lading, invoices, and other dry shipping documents, which merely record factual information about the transportation of asbestos. Evidence is not prejudicial simply because it is harmful to a party s case. The Invoices are relevant, are not prejudicial in the slightest, and should be admitted. III. The NAAC Invoices Are Admissible As Business Records, Or Alternately, As Ancient Documents. The NAAC Invoices are admissible as business records. The Court has already stated that if the documents are properly authenticated or certified then as a general proposition I find they would be admissible. Ex. G at 82:7-82:12. Accordingly, the documents are admissible so long as Union Carbide can demonstrate they are authentic or properly certified. Union Carbide can do both. First, the NAAC Invoices have been properly certified under Rule 3122-a. That rule holds that business records produced by non-parties whether or not pursuant to a subpoena are admissible provided that they are certified by a custodian or other qualified witness. N.Y. C.P.L.R a. The qualified witness must certify, by way of affidavit, that to the best of her knowledge the records are accurate, were made by the personnel or staff of the business, or persons acting under their control, in the regular course of business, at the time of the act, transaction, occurrence, or event recorded therein, or within a reasonable time thereafter, and that it was the regular course of business to make such records. Id. Accordingly, Union Carbide timely produced to Plaintiff the Certification of Sue Purrington, sworn in the form of an affidavit, which meets all of these requirements. See Ex. P (Jan. 27, 2016 Purrington Cert.). As set forth in her Certification, Ms. Purrington worked for NAAC between 1963 and 1978 (the exact years that the Invoices cover), and she is familiar with and knowledgeable of documents associated with sales to customers, including invoices and transportation documents (the exact documents at issue here). The Certification further attests that the Invoices are true and correct copies of records of acts or events, made at or near the time of events, by individuals with 8 8 of 10

9 knowledge of the events, and that they were made and kept as a regular practice in the course of NAAC s business. Id. Ms. Purrington is a qualified witness. Plaintiff argues that Ms. Purrington cannot be a qualified witness because she did not hold the title of Custodian of Records, but rather her duties were purely secretarial in nature. Motion at 2. This distinction makes no difference under New York law because any employee of a business can serve as a qualified witness as long as she has knowledge of the records and how they were made and kept in the regular course of business. See People v. Kennedy, 68 N.Y.2d 569, 577 (N.Y. 1986) (recognizing that business records can be offered through a custodian or employee ) (emphasis added). Plaintiff further contends that Ms. Purrington is not a qualified witness because her Certification states that, while she is familiar with the documents, she did not personally make all of them herself. Motion at 2. But New York law does not require this. In fact, the very text of Rule a does not state that the records have to be made by qualified witness, but by the personnel or staff of the business in the regular course of business. N.Y. C.P.L.R a(a)(4). Plaintiff s contention that Ms. Purrington herself must have made these documents in order for her to certify them is foolish given the rationale behind the rule: The purpose of the business records exception is to relieve the movant of the documents from the burden of being required to produce the person or persons who created the documents sought to be introduced, and instead allow introduction of the documents based only on testimony of their custodian, rather than their author, when the records are made in the regular course of business and it is the regular course of that business to make those documents. People v. Tisdale, 859 N.Y.S.2d 898, Slip Op. at *4 (N.Y. Crim. Ct. 2008). Accordingly, the NAAC Invoices have been properly certified under Rule 3122-a and are admissible as business records. Second, the NAAC Invoices are clearly admissible as ancient documents. Under New York law, an ancient document is one which is (1) more than 30 years old; (2) regular on its face, i.e., free of any indication of fraud or invalidity; and (3) maintained in a natural place of custody. Southbridge Towers Inc. v. Pion, 901 N.Y.S.2d 911, Slip Op. at *1 (1st Dep t 2009) (per curiam) (citing Tillman v. Lincoln Warehouse Corp., 72 A.D.2d 40, (1st Dep t 1979)). The NAAC Invoices fit these criteria. They are all more than 30 years old, covering the years between 1963 and They are regular, run-of-the-mill invoices with unsuspicious appearance that give no indication of fraud or invalidity. 10 In re Whyatt s Will, 173 N.Y.S.2d 898, 899 (N.Y. Sur. Ct. 1958). And finally, these Invoices have been maintained in a natural place of custody that is, [n]othing suspicious exists here with regard to the place of custody. In re Will of Borome, 800 N.Y.S.2d 343, Slip Op. at *1 (N.Y. Sur. Ct. 2003). Namely, NAAC produced these Invoices in a previous asbestos litigation and a plaintiff s firm has kept them in repository a common and very natural practice in asbestos cases, where many defendants have long since gone out of 10 Moreover, the invoices have been shown to be genuine by the affidavit of Sue Purrington, who has specifically sworn, based on her experience at NAAC during the years in question and working with the documents in question, that they are genuine. See Ex. P. 9 9 of 10

10 business. Indeed, for Plaintiff to argue otherwise would be hypocritical. Many of the Union Carbide documents that Plaintiff has used and admitted have been maintained in repositories located at law firm offices. The Invoices are therefore self-authenticating and should be admissible both as business records and independently as ancient documents. See Essig v Street Holding Corp., 50 A.D.3d 948, 949 (2d Dep t 2008) (finding documents admitted pursuant to ancient document rule were self-authenticating and were properly received by the trial court as proof of the facts stated therein ). IV. Conclusion Plaintiff s Motion should be denied in its entirety. Plaintiff has made the tactical decision to delay filing this motion until the eve of Union Carbide s case in chief. By doing so, Plaintiff seeks to deprive Union Carbide of the opportunity to prepare its defense with the benefit of an appropriate pre-trial ruling on a critical subject, and to force Union Carbide to repeatedly reference the Invoices in front of the jury before having an opportunity to argue their admissibility. Plaintiff s Motion could and should have been filed well before opening, and this Court should deny it as untimely. Even if Plaintiff s Motion were timely, it should still be denied. Plaintiff argues that the Invoices are irrelevant, notwithstanding the fact that this Court has already correctly rejected these relevance arguments. The Invoices are admissible as business records, they are admissible as ancient documents, they are plainly relevant to the issues in this case, and they are not prejudicial in the slightest. Accordingly, Union Carbide respectfully requests that this Court deny the Motion. Respectfully submitted, s/sandra Steinman Sandra Steinman, Esq. cc: All Parties via NYSECF of 10