Evan Torgan, an attorney duly licensed to practice law. in the State of New York, affirms the following under the

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1 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT X Index #11358/09 In the Matter of the Application of Doc. #7157/12 Henry F. Lewis, Duane Reade Shareholders LLC, Duane Reade Inc. and Duane Reade General Partnership, AFFIRMATION Petitioners, For judgment pursuant to CPLR Article 78 -against- Honorable Arthur M. Schack, as Justice Of the Supreme Court, Kings County, And Shirly Miller by Yehuda Miller and Malka Miller, Guardians of the Person And Property of Shirly Miller, pursuant To the Laws of the State of Israel, Respondents X Evan Torgan, an attorney duly licensed to practice law in the State of New York, affirms the following under the penalties of perjury: I am a member of the law firm of Torgan Cooper & Aaron PC, attorneys for respondents Shirley Miller by Yehuda Miller and Malka Miller, Guardians of the Person and Property of Shirly Miller, pursuant to the Laws of the State of Israel ( The Millers and/or plaintiff[s] ). I am fully familiar with the facts and circumstances of this case based upon a review of the file maintained by my office. I have reviewed the affirmation of our special and appellate counsel, Brian J. Isaac Esq., and the order to show cause of petitioners Henry F. Lewis, Duane Reade 1

2 Shareholders LLC, Duane Reade Inc. and Duane Reade General Partnership, seeking a writ of mandamus pursuant to CPLR Article 78 compelling the Honorable Arthur M. Schack to set a reasonable return date on a properly filed order to show cause seeking his recusal and further compelling him to determine the recusal motion sufficiently before the September 12 commencement of the trial that he is scheduled to conduct so as to allow petitioners to commence an appeal. I handled the trial of this action, which resulted in a mistrial on April 5, 2012 due to loss of jurors. Afterwards, I was hoping to retry the case immediately. Mr. McDonough on the other hand wanted to put the case over for a long time. Although I had pressed for trying it in May, Justice Schack, based upon his respect and admiration for Mr. McDonough, put the case over for trial in September, acceding fully to Mr. McDonough s requests. Now, after delaying the start date of the trial almost six months to a date defendants specifically requested, defendants seek even further delays of the case and an indeterminate stay of the trial pending resolution of this application. I note that I have reviewed the affirmations of Kenneth Fisher Esq., John McDonough Esq., and Eric Berger 2

3 Esq. in support of the application. Their story appears amusing at first glance, but ultimately it is not. My firm expended an incredible amount of time and money trying this case already. The disbursements already amount to approximately $300,000. Shirley Miller profoundly brain damaged, blind and paralyzed on one side of her body still awaits her day in Court. Unfortunately, the first trial ended in mistrial because the employers of many jurors simply refused to pay them anymore for time spent out of work. The trial became a lengthy one specifically because of multiple courtesies that Justice Schack afforded Mr. McDonough. First, his neurosurgical expert was granted adjournment after adjournment in the middle of his testimony first to go on a trip to China, and then to see patients in his office so his new job in a new practice would not be jeopardized. Second - and just as important for purposes of this motion- Mr. McDonough requested a two week hiatus in the middle of the trial for medical testing he told the Court he needed without either Justice Schack or me questioning it. Obviously, Mr. McDonough was treated exceptionally well by the Court throughout the trial. This two-week delay solely for the benefit of Mr. McDonough contributed to the length of the trial. As a 3

4 result, two jurors had long-standing vacations and to preserve the jury, in an attempt to avoid a mistrial, Justice Schack had to put the case over an additional three weeks in March. The combined five week delay was a disaster. The courtesies extended to Mr. McDonough for his medical tests and the delays extended to Mr. McDonough s expert witness contributed to the lengthiness of the case. Had Justice Schack had anything but respect and admiration for Mr. McDonough, these delays would not have been countenanced. Contrary to defendants representations, they were not deprived of a fair trial. They lost some motions and won others, but were not the victims of any ill will on Justice Schack s part, who only sought to ensure a fair trial for all. Defendants were upset with certain adverse rulings on in limine motions, but same were not appealable; they must await a judgment rendered after a full trial in order to appeal any such rulings. Contrary to defendants contentions, Justice Schack was actually friendly with Mr. McDonough, and asked me for permission to speak with him ex parte on administrative matters and non-court related issues in the hope that such an arrangement would lead to a faster trial and potentially a resolution of the entire case at an appropriate time. My 4

5 demand is significant due to the severity of plaintiff s injuries, and the strength of the liability scenario therefore, I do not believe defendants ever had a real intention to settle this case. A high eight-figure jury verdict, I believe, is sustainable on appeal. I did consent to Justice Schack s request that he be permitted to communicate with counsel on administrative matters and potential settlement ex parte, but not with regard to anything that was substantive in nature. Meanwhile, it is my understanding that Mr. McDonough and Justice Schack also spoke about topics such as sports outside my presence during the trial, which was perfectly appropriate. Neither I nor anyone in my firm had any idea that Mr. Berger would appear in court ex parte seeking the judge s signature on substantive orders so that same could then be appealed; such conduct was entirely unauthorized. As Mr. Isaac makes clear, defense counsel apparently does not know that orders on in limine motions rendered before trial, even when based on written motion papers, are not independently appealable either as a matter of right or by permission. Now, defense counsel seeks recusal based on events, which occurred during an ex parte visit, when neither I nor any member of my firm was present. 5

6 But my office contacted attorneys who were in the courtroom, all of whom denied that they heard Justice Schack use any vituperative or inappropriate language. Justice Schack we surmise, may have been upset because Mr. Berger improperly sought ex parte relief with respect to a substantive matter, a breach of decorum which could have subjected Justice Schack himself to discipline had he entertained the application. The bulls-eye drawn on Mr. McDonough s face and the word Wanted above it, were clearly intended to be humorous. It was totally consistent with the congeniality and humor that took place between Justice Schack, Mr. McDonough and me throughout the course of the trial. It was obvious that the Judge was quite fond of Mr. McDonough and Mr. Berger. The downloaded picture of Mr. McDonough from his website was an attempt to be funny, since Mr. McDonough got exactly what he wanted on April 5th a mistrial. At one point in the trial, Mr. McDonough moved on a daily basis each morning for a mistrial, to the point where it became a point of good natured humor. The wanted picture was just an extension of the good-natured camaraderie between bench and bar that was ever-present throughout the case. That is precisely why Mr. McDonough did not say anything when he saw the wanted posters on the 6

7 last day of the trial: the good natured manner in which the drawing was made was an attempt by Justice Schack (if he wrote on the picture) to diffuse a hard-fought and contentious trial. As the attorney who tried this case, I found no bias at all in Justice Schack and do not believe that he had any animus toward defense counsel. I can affirm that at no time during the proceedings did I see any evidence of bias on his part; in fact, he seemed to have a positive relationship with Mr. McDonough. If, as they implicitly admit in their motion papers, defendants are seeking in any way possible (including untrue allegations of bias) to get Justice Schack off this case because they do not like his trial rulings, then that would be inappropriate. His artwork was clearly nothing more than a joke, and one that was directed at Mr. McDonough s finally getting his mistrial after myriad of motions for that relief during the trial. His anger, if it existed, at Mr. Berger s actions was justified for what he saw as a breach of decorum and attempted ex parte action, and his response was not at all excessive in the circumstances. I submit this affirmation to set the record straight, and adopt the legal and factual arguments set forth in Mr. Isaac s affirmation. 7

8 WHEREFORE, for the foregoing reasons, it is respectfully requested that the application be denied. Dated: New York, New York August 14, 2012 Evan Torgan 8