Perpall et al v. Wheeler et al

Filing 105

ORDER: For the reasons stated in the attached, the parties' motions [97,100] are denied and Plaintiffs will not be permitted to add a claim of negligent entrustment against Defendant Stilphen. The parties shall submit their proposed stipulation and Second Amended Joint Pretrial Order by June 22, 2018. The Court shall hold a pre-trial conference on July 10, 2018 at 2:00 p.m. Ordered by Judge Pamela K. Chen on 5/25/2018. (Hess, Alexandra)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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BARBARA ANN PERPALL and PAUL U.
PERPALL,
Plaintiffs,
MEMORANDUM & ORDER
12-CV-0336 (PKC)(RLM)

- against PAVETEK CORP., RICHARD A. WHEELER,
and WILLIAM STILPHEN,
Defendants.
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PAMELA K. CHEN, United States District Judge:

Before the Court are: (1) Defendant William Stilphen (“Stilphen”)’s motion to dismiss the
supposed negligent entrustment claim against him or, in the alternative, his motion for summary
judgment as to the same claim; (2) Plaintiffs’ motion for leave to amend the complaint to add a
negligent entrustment cause of action if the Court grants Stilphen’s motion to dismiss or, in the
alternative, Plaintiffs’ cross-motion for summary judgment; and (3) Plaintiffs’ motion to strike the
deposition testimony of non-party witness Thomas Folker. For the reasons stated below, the
parties’ motions are denied.
DEFENDANT STILPHEN’S MOTION TO DISMISS
NEGLIGENT ENTRUSTMENT CLAIM
The Court assumes the parties’ familiarity with the facts in this case and thus recites them
only to the extent relevant to the Court’s analysis.
On November 2, 2017, the Court held a pretrial conference with the parties. Plaintiffs
informed the Court, for the first time, that they intended to prove a claim of negligent entrustment
as to Defendant Stilphen. Defendants argued that no such claim had ever been pled, and even if it
had, that it would fail under Federal Rule of Civil Procedure 12(b)(6). In light of Plaintiffs’

contention that defense counsel had known of Plaintiffs’ negligent entrustment theory for some
time, but doubting that the claim had ever been formally pled, the Court instructed defense counsel,
inter alia, to “advise the Court if Defendant Stilphen wishe[d] to move to dismiss the negligent
entrustment claim as to him[.]” (11/02/2017 Minute Entry.) On December 4, 2017, defense
counsel notified the Court that he intended to file a motion to dismiss (Dkt. 89), which was fully
briefed on February 16, 2018 (Dkt. 97). That same day, Plaintiffs moved, in part, to amend their
complaint to add the negligent entrustment claim in the event that the Court granted Defendant
Stilphen’s motion to dismiss the claim as being insufficiently pled. (Dkt. 100; Affirmation of
Lester B. Herzog (“Herzog Aff.”), Dkt. 101, at ¶¶ 36-39.) 1
As an initial matter, upon reviewing the Amended Complaint and other filings in this case,
the Court finds that Plaintiffs, in fact, have not pleaded a negligent entrustment cause. There is no
such claim articulated in either Plaintiffs’ Amended Complaint (Dkt. 15) or the parties’ two joint
proposed pretrial orders (Dkts. 56 at 2 (stating that Plaintiffs’ claim is a “negligence claim
predicated on the defendants’ negligent operation of their motor vehicle”), 85 at 2 (same)).
Therefore, Defendant Stilphen’s motion to dismiss is denied as moot,2 and the Court will only

1

The Court requests that, going forward, Mr. Herzog confine his attorney affirmation to
“simply attach[ing] and identif[ying] exhibits for the Court[.]” Dejana Indus., Inc. v. Vill. of
Manorhaven, No. 12-CV-5140 (JS)(SIL), 2015 WL 1275474, at *2 (E.D.N.Y. Mar. 18, 2015).
Counsel’s affirmation currently “consists entirely of factual assertions and legal arguments
regarding [Plaintiffs’] evidence. This type of affirmation is improper and inadmissible” under
Federal Rule of Civil Procedure 56(d) and Local Civil Rule 7.1. Id. at *2-3.
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Even if the Court construed Plaintiffs’ Amended Complaint to be alleging a cause of
action for negligent entrustment, Plaintiffs’ claim would fail on a motion to dismiss. To establish
a cause of action for negligent entrustment, “a plaintiff must show that the defendant had some
special knowledge concerning a characteristic or condition peculiar to the person to whom a
[vehicle] is given which renders that person’s use of the [vehicle] unreasonably dangerous.”
Graham v. Jones, 147 A.D.3d 1369, 1371 (N.Y. App. Div. 2017) (alterations, citation, emphasis,
and internal quotation marks omitted); see also Bennett v. Geblein, 71 A.D.2d 96, 98 (N.Y. App.
Div. 1979) (“[A] person other than the owner may be held liable under a theory of negligent
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address the question of whether Plaintiffs should be given leave to file a Second Amended
Complaint to add a cause of action for negligent entrustment. 3
PLAINTIFFS’ MOTION TO AMEND COMPLAINT
Under Fed. R. Civ. P. Rule 15(a), “leave to amend shall be freely given when justice so
requires.” TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (internal quotation
marks omitted); Fed. R. Civ. P. 15(a). “Under this liberal standard, a motion to amend should be
denied only if the moving party has unduly delayed or acted in bad faith, the opposing party will
be unfairly prejudiced if leave is granted, or the proposed amendment is futile.” Agerbrink v.
Model Serv. LLC, 155 F. Supp. 3d 448, 452 (S.D.N.Y. 2016); see Foman v. Davis, 371 U.S. 178,
182 (1962).
The Court denies Plaintiffs’ motion to amend. There is no excuse for Plaintiffs’ delay in
making the instant motion to amend. Discovery in this case, which spanned more than three years,
concluded on July 7, 2015, after multiple extensions and admonishments by this Court and the
Honorable Roanne L. Mann, who presided over the pretrial phase of the case. The fact that
Plaintiffs might not have known about Defendant Wheeler’s checkered driving history or the fact
that he got into an accident on December 8, 2010—the day before the accident at issue in this

entrustment if he had control over the vehicle and if he was negligent in entrusting it to one who
he knew, or in the exercise of ordinary care should have known, was incompetent to operate it.”).
While Plaintiffs allege that Stilphen owned the vehicle Wheeler was driving (Am. Compl., at ¶¶
15, 19) and that the accident was “[s]olely as a result of the defendants’ negligence” (id. at ¶ 27),
the Amended Complaint does not allege that Stilphen possessed any “special knowledge” that
Wheeler was “incompetent to operate” the vehicle in question, Bennett, 71 A.D. at 98.
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Defendants also move to dismiss, or seek summary judgment as to, the negligence claim
against Stilphen. Defendants did not seek, and the Court did not grant, leave for Defendants to file
motions regarding the negligence claim. (See 11/02/17 Minute Entry and 12/05/17 Scheduling
Order.) Therefore, those motions are denied. Even if the Court were to reach the merits of these
motions, a genuine dispute of material fact exists regarding the ownership of the vehicle and the
identity of Wheeler’s employer, so as to preclude summary judgment.
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case—when they filed their Amended Complaint in December 2012, is no excuse. Plaintiffs have
known these facts about Wheeler, which appear to form the basis for their negligent entrustment
claim, and Stilphen’s knowledge about them, since, at the latest, March 11, 2013, when Wheeler
and Stilphen were initially deposed. (See, e.g., Deposition of Richard A. Wheeler, Dkt. 100-6, at
23:19-24:24; Deposition of William Stilphen, Dkt. 100-11, at 22:24-23:18.) Yet, in the more than
four years hence, Plaintiffs never moved to amend their complaint. Instead, the Court and, more
importantly, Defendant Stilphen, did not learn of the supposed negligent entrustment claim until
the November 2, 2017 initial pre-trial conference, held in anticipation of trial.
The Court recognizes that mere delay alone does not permit a district court to deny leave
to amend. Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993). But, where, as here, “a
considerable period of time has passed between the filing of the complaint and the motion to
amend, courts have placed the burden upon the movant to show some valid reason for [their]
neglect and delay.” Sanders v. Thrall Car Mfg. Co., 582 F. Supp. 945, 952 (S.D.N.Y. 1983), aff’d,
730 F.2d 910 (2d Cir. 1984) (internal quotation marks omitted). Plaintiffs have provided no
explanation for why they waited five years to add the claim of negligent entrustment, except for
the untenable contention that “the claim of negligent entrustment was always out there; albeit,
admittedly, not specifically spelled out in the pleadings.” (Herzog Aff. at ¶ 38.) This explanation
is woefully insufficient, and warrants denial of Plaintiffs’ request for leave to amend. See
Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir. 1990) (“The court plainly has
discretion . . . to deny leave to amend where the motion is made after an inordinate delay, no
satisfactory explanation is offered for the delay, and the amendment would prejudice the
defendant.”); Suro v. United States, 107 F.Supp.2d 206, 210 (E.D.N.Y. 2000), on
reconsideration (Oct. 4, 2000), adhered to on reconsideration sub nom. Suro ex rel. Suro v. United

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States, No. 95-CV-4778, 2000 WL 1515173 (E.D.N.Y. Oct. 4, 2000) (denying leave to amend
where the case had been pending for five years, discovery was nearly complete, and the plaintiffs
had notice of the new defendant they sought to add long before they moved to amend).
Furthermore, allowing Plaintiffs to amend their complaint at this stage of the litigation
would unduly prejudice Defendants. To determine whether a proposed amendment will prejudice
the defendant, courts in this Circuit “consider whether the assertion of the new claim would: (i)
require the opponent to expend significant additional resources to conduct discovery and prepare
for trial; (ii) significantly delay the resolution of the dispute; or (iii) prevent the plaintiff from
bringing a timely action in another jurisdiction.” Block, 988 F.2d at 350. Prejudice against
defendants tends to increase with delay in filing an amended complaint, and granting a motion to
amend is “especially prejudicial” when discovery has already been completed. Ansam Assocs.,
Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir. 1985); Grochowski v. Phoenix Const., 318
F.3d 80, 86 (2d Cir. 2003) (“[W]hen the motion [to amend] was filed, discovery had
been completed and a summary judgment motion was pending. On this record we cannot say that
the district court abused its discretion in denying the plaintiffs’ motion to amend.”); Cartier, Inc.
v. Four Star Jewelry Creations, Inc., No. 01-CIV-11295 (CBM), 2004 WL 169746, at *3
(S.D.N.Y. Jan. 28, 2004). In this case, Defendants have already moved for summary judgment
and discovery is long complete. Moreover, allowing a claim of negligent entrustment would
require additional discovery—although Plaintiffs do not specify what specific discovery they
would like to take, just that it is “entirely in the realm of judicial discretion” (Herzog Aff. ¶ 39; see
also Def.’s Br., Dkt. 97-14, at 11-12)—likely including discovery about the accident that occurred
on December 8, 2010, which occurred more than seven years ago and about which it appears that
minimal discovery has been taken (Def.’s Br., at 8). The additional discovery would “significantly

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delay the resolution of the dispute”at expense to Defendants, Block, 988 F.2d at 350, not only
because “Defendants reside in Maine and Pavetek is a closely held company which relies on Mr.
Stilphen to operate its day-to-day business” (Def.’s Br., at 11), but also because as this Court said
more than three years ago, “[b]ut for the numerous extensions of the discovery deadline granted
to Plaintiff[s], this case would have been tried by now. The trial of this matter should not be
delayed any further[,]” (2/23/15 Order Granting Motion to Dismiss and Amended Motion to
Dismiss); see Portelos v. City of New York, No. 12-CV-3141 (RRM)(VMS), 2015 WL 5475494,
at *2 (E.D.N.Y. Sept. 15, 2015) (“Indeed, courts have noted that delay in the final disposition of
an action is one of the most important considerations when determining whether an amendment
would prejudice the other party.”). Taken together, these circumstances establish that amending
the complaint at this stage of litigation would unduly prejudice Defendants and cause substantial
delay in a case that has been dragging on for six years. 4
Therefore, Plaintiffs’ motion for leave to amend is denied and the parties’ cross-motions
for summary judgment are denied as moot.
PLAINTIFFS’ MOTION TO STRIKE FOLKER DEPOSITION
Non-party witness Thomas Folker appeared for a deposition on April 12, 2013. (Dkt. 9712.) Folker was previously employed by Defendant Pavetek and was allegedly driving behind
Wheeler at the time of the accident. (Def.’s Br., at 4.) On May 22, 2013, Folker received a letter
from defense counsel providing Folker with a copy of his deposition transcript and asking him to

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In his affirmation, Mr. Herzog states that Defendants would not be prejudiced by
amendment because defense counsel “some 5 years ago, threatened to make a motion regarding
Stilphen . . . but did not go through with it. So much for the defendants’ claim of ‘prejudice’ and
‘futility’ regarding the proposed amendment.” (Herzog Aff. at ¶ 39.) However, there is no
evidence in the emails that Mr. Herzog attaches to his affirmation that defense counsel was aware
of a negligent entrustment claim against Defendant Stilphen. (See generally Dkt. 101-1.)
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“[p]lease review and execute the original of this transcript before a Notary Public, making any
corrections on the enclosed Errata Sheet. Both the correction sheet and the executed deposition
transcript should be returned to our office in the enclosed envelope within thirty days.” (Dkt. 9712, at 2 (emphasis omitted).) It is disputed whether Folker requested to review his deposition
transcript. (Dkt. 100-13, at ¶ 17.) According to Plaintiffs, on September 20, 2013, Folker called
the attorneys for both parties “and stated that he was coerced by Stilphen to give perjured testimony
at his deposition, and that he has decided not . . . to participate in any further actions.” (Pls.’ Br.,
Dkt. 100-12, at 3-4.) Defendants disagree with this characterization of the phone call. On October
9, 2013, Folker wrote a letter to defense counsel, copying Plaintiffs’ counsel, stating, “[t]his letter
is being written so you understand that I will not testify or sign the deposition. In the case of
Perpall vs Pavetek corp for the reasons we talk[ed] about on the phone around September 20th
[2013].” (Dkt. 100-4.) On October 24, 2013, the Court reopened discovery for the limited purpose
of allowing the parties to re-depose Folker. (See 10/24/2013 Minute Entry; see also March 24,
2014 Minute Entry.) On December 4, 2017, Defendants informed the Court that they had been
unable to locate Folker. (Dkt. 89.) Plaintiffs moved to strike his testimony on February 17, 2018.
(Dkt. 100.)
First, Plaintiffs argue that Folker’s testimony should be stricken on procedural grounds
because the deponent did not sign the deposition transcript, the notary certification accompanying
the deposition was not signed or notarized, and there is no indication as to whether Folker made a
request to review the transcript. (Herzog Aff. at ¶¶ 43-45.) Plaintiffs’ arguments are rejected as
untimely. See, e.g., Torres v. Do It Best Corp, No. 07-CV-230 (CS)(LMS), 2008 WL 4974588, at
*4 n.4 (S.D.N.Y. Nov. 24, 2008) (“[A]lthough the transcript of Plaintiff’s deposition is unsigned,
Plaintiff failed to object to this error with reasonable promptness, thereby waiving any objection

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to its use.”); Int’l Cargo & Sur. Ins. Co. v. M/V “Hreljin”, No. 88-CV-3807 (BN), 1993 WL
426651, at *10 n.4 (S.D.N.Y. Oct. 19, 1993) (finding “that counsel for plaintiff was present at the
deposition and was aware of the missing signature no later than . . . some two and a half months
prior to trial, but did not object to its admission until trial. Plaintiff did not make a motion to
suppress within a reasonable time under Rule 32(d)(4). Thus, even if the deposition were
excludable at trial for lack of a signature, the objection was waived by operation of law.”); see also
Fed. R. Civ. P. 32(d)(4) (“An objection to how the officer. . . prepared, signed, certified, sealed,
endorsed, sent, or otherwise dealt with the deposition . . . is waived unless a motion to suppress is
made promptly after the error or irregularity becomes known or, with reasonable diligence, could
have been known.”).
Second, Plaintiffs argue that Folker’s testimony should be stricken because Folker stated
on the September 20, 2013 phone call with counsel that he had been forced by Defendant Stilphen
to perjure himself. Notwithstanding the legitimate concerns about Folker’s testimony, the Court
declines to strike his deposition. Fed. R. Civ. P. 30(e) “explicitly permits deposition witnesses to
make substantive changes to the transcripts of their depositions. It provides that a witness, upon
appropriate request, ‘shall have 30 days . . . in which to review the transcript . . . and, if there are
changes in form or substance, to sign a statement reciting such changes and the reasons given by
the deponent for making them.’” Toland v. Forest Labs., Inc., No. 00-CV-4179 (LAK), 2001 WL
30617, at *1 (S.D.N.Y. Jan. 11, 2001) (quoting Fed. R. Civ. P. 30(e) (emphasis omitted).
Nevertheless, “a deponent’s original answer should be admitted into evidence even when he
amends his deposition testimony.” Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir.
1997) (citations, alterations, and quotation marks omitted). Construing Folker’s letter as an
amendment to his deposition testimony, Folker’s deposition testimony will be admitted, along with

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Folker’s October 9, 2013 letter. (Dkt. 100-4.) 5 See Samad Bros., Inc. v. Bokara Rug Co., No. 09CV-5843 (JFK)(KNF), 2012 WL 43613, at *8 (S.D.N.Y. Jan. 9, 2012) (“Courts in the Second
Circuit construe Rule 30(e) broadly, permitting any changes to the deposition to be considered as
part of the record, even where they contradict the original answers.”) (collecting cases); see also
Toland, 2001 WL 30617, at *1 (“[T]here are ample remedies for dealing with the problem that
may be created by substantive changes in deposition testimony. Both the original and corrected
answers remain part of the record. The changes obviously may affect the trier of fact’s view of
the credibility of the witness. Surely a skilled cross-examiner is well able to deal with the existence
of contradictory sworn statements by an adverse witness.”). To the extent Plaintiffs argue that
counsel for both parties will have to testify at trial “regarding their respective memories as to what
Mr. Folker said were the reasons for his refusal to sign the deposition transcript and/or testify”
(Herzog Aff. at ¶ 48), the court orders counsel for both parties to agree on a stipulation to be
entered into evidence at trial as to the content of the September 20, 2013 phone call.
CONCLUSION
For the reasons stated above, the parties’ motions are denied. The parties shall submit their
proposed stipulation and Second Amended Joint Pretrial Order by June 22, 2018. The Court shall
hold a pre-trial conference on July 10, 2018 at 2:00 p.m.
SO ORDERED.
/s/Pamela K. Chen
PAMELA K. CHEN
United States District Judge

Dated: May 25, 2018
Brooklyn, New York

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Plaintiffs also allege multiple inconsistencies between Folker’s deposition testimony and
other evidence in the record. (Pls.’ Br., at 5-8.) Plaintiffs are free to impeach the deposition at
trial. The issue of his veracity and reliability are for the jury to consider.
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