Schoolcraft v. The City Of New York et al

Filing 116

ENDORSED LETTER addressed to Judge Robert W. Sweet from Walter A. Kretz, Jr. dated 10/15/2012 re: I write to the Court to respectfully request that plaintiff be directed to appear for a deposition session of no greater than seven hours, during which I will have an opportunity to examine him on behalf of defendant Steven Mauriello. ENDORSEMENT: Treat as motion returnable 10/24.The deposition will be held. Counsel will meet and confer on a date and time.(Signed by Judge Robert W. Sweet on 10/24/2012) (djc)

OCT-15-2012

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SCOPPETTA SEIPP KRETZ & ABERCROMBIE
444 MADISON AVENUE
30TH FLOOR

ERIC A. SEIFF
WALTER 1\.. KRETZ, JR.
CHARLES D. AI3ERCROMBIP

NEW YORK, NY 10022-JOlO
(1):2) 371-4:300
FAX [phone]

MARIMA OLENKO

ROLA.1~D R, ACEVEDO
NlCI'lOLAS SCOPPETTA

• A:",'lO ADMI'nED IN CT

Via Facsimile (212-805-7
Honorable Robert W. Swe
Un~ted States D~str~ct Judg
Umted Stat~s !?lstnct Cow
~outhem Dlstnct of New "'
,00 Pearl Street
Nevv' York, NY 10007
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Schoolcraft v. The City ofNew York, et al., lO-CV-6005 (RWS)

Dear Judge Sweet:
I write to the Court to respectfully request that plaintiff be directed to
appear for a deposition session of no greater than seven hours, dtuing which I will have
an opportunity to examine him on behalf of defendant Steven Mauriello. I was retained
by the City of New York in May 2012 to represent Mr. Mauriello, a Deputy Inspector in
the New York City Police Department during the relevant period, in his individual and
official capacities. My understanding is that the New York City Law Department
detemuned it is precluded from representing Mr. Mauriello due to an actual and/or
apparent conflict of interest.
On Thursday, October 11, 2012, plaintiff appeared for the first session of
his deposition in this case, which was conducted by Suzanna Publicker, the attorney for
the City of New York and all "City defendants" other than Mr. Mauriello. Ms. Publicket
had indicated to plaintiffs attorneys in advance of the deposition that she would require
as much as two full days to conduct her pottioll of the deposition, and I had indicated I
needed to reserve an additional full day to conduct my examination. Plaintiffs attorneys
refused to produce plaintiff for a second day of examination by either one of us. A
second day of examination had been scheduled for October 25,2012, for the "medical
defendants" - Jamaica Hospital, Dr. Isak I~akov_~nd~a~i~~U~

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their examinations, but plaintiff refused to make Mr. Schoolcraft available for any
additional examination by the City's attorney or by me without a court order.
At the end of the first day of Mr. Schoolcraft's deposition on October 11,
2012, the City indicated - at 7:00 p.m., after taking seven hours of testimony - that it had
completed its examination, subject to any additional disclosure by plaintiff that might
warrant the taking of further testimony. At that moment I renewed my request that
plaintiff appear for a continuation of his deposition that I would conduct on behalf of Mr.
Mauriello, but plaintiff's attorneys again refused absent a court order. I respectfully
request that plaintiff be directed to appear on October 25, 2012, for that examination.
The medical defendants are unable to proceed with their respective examinations on that
date because one ofthe attorneys is actually engaged on triaL Representatives of all
attorneys, however, are able to appear on that date for my examination of the plaintiff.
It is inappropriate for plaintiffs attorneys to deny Mr. Mauriello's
attorneys an opportunity to question the plaintiff for several reasons:

1.
There is a conflict of interest between the City and Mr. Mauriello,
which not only requires their separate representation, but also independent advocacy by
their respective counsel on their behalves. We simply are not in a position to combine
our efforts into one in this matter or to depend on each other to act in furtherance of any
interest other than that of our respective clients. The matters covered by the City at the
deposition simply are not the same or were not covered in the same way as they would be
if I were examining the plaintiff.
2.
While the City's attorney made a remarkable effort in her
examination of the plaintiff to cover as many ofthe relevant events as possible, it simply
was impossible to cover everything of significance in the case, or to delve as deeply into
some matters as we believe is essential to protect Mr. Mauriello's interests.
We do not yet have the transcript, but countless times throughout
3.
the first day of his deposition Mr. Schoolcraft testified he was unable to provide the
requested infOImation -- such as the identity of a supervisor Or fellow officer, or the sum
and substance of what was said, or the location of an event, or the sequence or timing of
events, or the actions that might have been taken. Instead, he repeatedly said such things
as the following: certain allegedly inappropriate events occurred, or statements were
made, many times, but he does not specifically recall when they occurred or who was
involved) or how many times they occurred, or what specifically was said or by whom or
on how many occasions; he claimed to be certain they occurred or were said and would
have been recorded by him. though he did not record everything and does not specifically
recall what had been recorded or whether he was able to record certain events or
comments. He even in,dicated at one point in his testimony that he had recently listened
to the recordings, but still was not able to accurately recount what had happened. Despite
such testimony, the City opted, perhaps wisely. not to have Mr. Schoolcraft listen to any
of the many hours of recordings surreptitiously made by him of his fellow officers and
supervisors, and did not present him with any transcripts of any recordings. Since it

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appears Mr. Schoolcraft must rely on his recordings to provide evidence oftbe alleged
l11istreatment, it is especially important that we examine him about the recordings
because Mr. Mauriello often is one of those recorded or mentioned in the recordings.

4.

There are many other recordings made by the NYPD of events

relating to Mr. Schoolcraft that the City also opted not to review with Mr. Schoo1claft at
his deposition. The testimony he provided about such events arguably is at odds with
what is presented in the recordings, but he was not asked to review the recordings or
explain the apparent disparity between his characterization of the events and what
appears on the recordings. It is important to all concerned that we know his explanation
for at least some of the discrepancies.
5.
Mr. Schoolcraft throughout his testimony identified specific
supervisory officers to whotn he attributes wrongdoing or on whom he castes blame for
the alleged occurrence of wrongful conduct he attributes to the NYPD. Mr. Mauriello is
identified as one ofthose supervisory officers. We need to follow up on the specific
instances in Mr. Schoolcraft's testimony where he mentions Mr. Mauriello in the context
of the occunence of allegedly "vrongful conduct, to discuss his role in certain events and
to establish the substantial majority of the time when Mr. Mauriello was not at all
involved, de~pite My. Schoolcraft's suggestions to the contrary.
6.
There are instances In the recordings where specific comments are
made by Mr. Schoolcraft about Mr. Mauriello that exhibit Mr. Schoolcraft's feelings
toward him, which were not explored by the City. The comments would appear to shed
light on Mr. Schoolcraft's motivations, mindset and emotional state~ about which there is
much to be explored in that context as well as in other contexts. The City's attorney
simply did not have sufflcient time to delve into these areas or opted not to do so. On
behalf of Mr. Mauriello, I believe it is important that I be given the opportunity,
7.
There are a number of other areas which the City simply did not
have enough time to cover that could prove to be critical to the assessment of plaintiff s
credibility, character, emotional state and motivation and, ultimately, the integrity of his
claims. It is in the common interest of all City defendants, not just Mr. Mauriello, that
these matters be explored more fully.
Thank you for your consideration.
Respectfully submitted,

Walter A. Kretz, Jr.
cc: All Counsel, By Facsimile

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