Schoolcraft v. The City Of New York et al

Filing 201

MEMORANDUM OF LAW in Support re: 200 MOTION for Reconsideration re; 175 Memorandum of Law in Support of Motion, 174 Declaration in Support of Motion,. MOTION for Reconsideration re; 175 Memorandum of Law in Support of Motion, 174 Declaration in Support of Motion,.. Document filed by Steven Mauriello(Tax Id. 895117, Individually), Steven Mauriello(Tax Id. 895117 in his official capacity). (Kretz, Walter)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ADRIAN SCHOOLCRAFT,
Plaintiff,
-against10-CV-06005 (RWS)
THE CITY OF NEW YORK, et al.,
Defendants.
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DEFENDANT MAURIELLO’S MEMORANDUM IN SUPPORT
OF HIS MOTION FOR RECONSIDERATION OF HIS
MOTION FOR LEAVE TO AMEND HIS ANSWER
TO ASSERT STATE-LAW COUNTERCLAIMS
Preliminary Statement
Defendant Steven Mauriello, a Deputy Inspector in the New York
City Police Department (NYPD), respectfully urges the Court’s reconsideration of
his motion for leave to serve an amended answer to assert state-law
counterclaims against the plaintiff for tortious interference with his NYPD
employment and prima facie tort.
Argument
POINT I
DEFENDANT MAURIELLO DID NOT “WAIT”
TO SEEK LEAVE TO SERVE HIS COUNTERCLAIMS;
ANY DELAY WAS DUE TO PLAINTIFF’S ALTERATION
OF EVIDENCE BY DELETING A RECORDED CONVERSATION
CRITICAL TO THE ASSERTION OF THE COUNTERCLAIMS
Defendant Mauriello did not wait three years, one year or even nine
months to assert his counterclaims. His motion for leave to amend was filed
within one month after his discovery of the evidence needed to assert the

counterclaims. That discovery was delayed for so long due to plaintiff’s alteration
of the recordings produced in discovery by deleting the critical conversation
between plaintiff and his father.
This case was commenced in August 2010. From that date until
the undersigned appeared on his behalf in May 2012, defendant Mauriello was
represented by counsel for the City defendants (though apparently there was
little or no communication between them). During that nearly two year period, it
was never made known to him that evidence – plaintiff’s recording of a
conversation he had with his father on October 7, 2009 -- had been preserved by
plaintiff and retrieved in November 2009 by the NYPD’s Internal Affairs Bureau
(IAB). That recording explicitly indicates plaintiff was motivated in his actions to
get revenge against Mauriello.
After the undersigned commenced representation of defendant
Mauriello in May 2012, we wrote to all counsel in June 2012 and then again in
August 2012 asking that we be provided with copies of any discovery already
produced by each party. In the first week of September 2012, plaintiff’s counsel
at the time mailed an envelope of documents having nothing to do with
recordings, and thereafter did not produce anything further. The City’s attorneys
then provided us with two discs containing copies of plaintiff’s production from
April 9, 2012, including all of his roll call recordings over a two year period as well
as “supplemental recordings”, including the recordings of plaintiff’s conversations
on October 7, 2009. Unbeknownst to us at the time, deleted from the recordings
was the conversation plaintiff had with his father on that date, which immediately
preceded his conversations and meeting with representatives of QAD.
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We immediately undertook to review the many hours of recordings
provided by the City that had been produced by plaintiff in discovery, as the first
session of plaintiff’s deposition was imminent. Over the course of the next four
weeks preceding plaintiff’s first deposition session, the City produced to us more
than 60 additional discs of documents and recordings, which included what we
understood to be duplicates of the many hours of recordings produced by the
plaintiff. We had no reason to compare the City’s copy of those recordings with
the plaintiff’s copy of those recordings, and did not do so. Consequently, we
knew nothing about the conversation plaintiff had deleted from the copy he had
produced of his recordings of October 7, 2009. Without it, we did not have a
sufficient basis to assert the counterclaims. Only when the Rayman book was
published in August 2013 did we discover that plaintiff had deleted the critical
conversation with his father.
The Rayman book discussed a recorded conversation between
plaintiff and his father that we had never heard, despite listening carefully to all of
the many hours of recordings produced by plaintiff in discovery. We then
searched the recordings produced by the City, which we had understood to be
duplicates of the conversations produced by plaintiff, and discovered that the
City’s copy of plaintiff’s recorded conversations from October 7, 2009, included
the conversation between plaintiff and his father. Thus, we must emphasize that
PLAINTIFF OR HIS PRIOR ATTORNEYS HAD DELETED THAT
CONVERSATION FROM THE COPY HE PRODUCED IN DISCOVERY OF HIS
RECORDED OCTOBER 7TH CONVERSATIONS, and because of that we did

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not learn of that conversation with his father until nearly a year later than we
should have learned about it.
In less than one month after our discovery of the October 7th
conversation deleted by plaintiff, we drafted the counterclaims and filed the
motion for leave to amend. Respectfully, it simply is not just, nor in keeping with
leave to amend being freely granted, especially in the absence of undue
prejudice, to allow plaintiff to avoid answering the allegations of the
counterclaims due to a delay for which he is substantially responsible because
he altered the evidence. Remarkably, he provided the recording to the
reporter/author, but did not produce it in discovery.
POINT II
THE COUNTERCLAIMS ONLY RAISE
ISSUES ALREADY AT THE HEART OF THIS CASE,
OTHER THAN SOME ASPECTS OF THE HARM
SUFFERED BY MAURIELLO
The counterclaims do not allege any new matter not already at
issue in the case, other than some aspects of the harm suffered by Mauriello.
For example, with respect to the specific concern expressed by the Court that the
counterclaims will “require additional rounds of discovery . . . on specifics of the
downgrading of crime reports at the 81st Precinct,” the fact is that the issue of the
downgrading of crime reports in the 81st Precinct is an essential element of
plaintiff’s claims and is very much at the heart of his case. (See Second
Amended Complaint ¶¶ 2 (“falsifying and . . . suborn[ing] perjury on police
reports”), 128-130, and 247-252. So, too, must it be at the heart of Mauriello’s
defense against plaintiff’s claims, with or without counterclaims. Quite simply,

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the counterclaims do not create a need for discovery on that subject any more
than already exists.
To elaborate, plaintiff claims, among other things, as follows: there
was intentional downgrading of complaint reports in the 81st Precinct; he reported
this practice to QAD; the individual defendants learned of his cooperation with
QAD before October 31st; and they then staged plaintiff’s removal from his home
and his hospitalization in the Jamaica Hospital psychiatric ward so QAD might
conclude he was crazy and forego an investigation of his complaint.
Defendant Mauriello, on the other hand, claims as follows: he did
not know prior to October 31st that plaintiff had complained to QAD about the
intentional downgrading of crime in the 81st Precinct; even if he had known, he
would not have expected QAD to find crime was being intentionally downgraded
in the 81st Precinct because that was not the practice under his command; he
therefore had no reason to stage plaintiff’s removal from his home, no reason to
believe he could get plaintiff admitted to the psychiatric ward, and no reason to
believe, even if such things happened, that QAD would be influenced to forego
an investigation of plaintiff’s complaint.1
Thus, plaintiff’s case depends on proving it was the practice of the
81st Precinct to intentionally downgrade crime. Mauriello’s defense (and his
counterclaims) will attempt to show there was no such practice and that his
precinct’s performance with respect to the handling of complaint reports was as
good or better than many other precincts throughout the City. He will further
1

Mauriello played a minimal role in the events of October 31 -- he was not in charge, and
spoke to plaintiff for less than a minute before completely removing himself from the events. We expect
plaintiff’s claims against him for retaliation ultimately will be dismissed.

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show that plaintiff tried to mislead QAD to conclude otherwise so plaintiff could
get revenge against Mauriello -- for signing off on his poor evaluation and for
somehow influencing the NYPD psychiatrist to put plaintiff on modified duty
without a gun and shield throughout the six months prior to October 31st.
With respect to Mauriello’s harm, it can be easily covered at his
deposition, and, again, only minimally expands the scope of discovery. Plaintiff
has every interest in showing that NYPD did not punish Mauriello severely
enough because it was complicit in the practice of downgrading crime, while
Mauriello will argue otherwise based upon the same information. The same
witnesses will be called upon to address both sides of the issue. Finally, the
records relating to the consequences suffered by Mauriello to date have been
produced by the City, and any further documentation will be very limited and
certainly will be produced well before all other discovery in this case is
completed.
POINT III
IT IS INACCURATE, AND UNFAIR
UNDER ALL OF THE CIRCUMSTANCES,
TO CONCLUDE THAT ANY DELAY
IN THE FINAL RESOLUTION OF THIS CASE
COULD BE ATTRIBUTED TO THE COUNTERCLAIMS
We urge the Court to reconsider its assessment that the
counterclaims will “delay the final resolution of the action.”
First, we filed our motion for leave to amend, along with the
proposed counterclaims, after this case had been pending for three years. At
that time, document production was still far from completed, and only one of the
three agreed-upon sessions of the plaintiff’s deposition had been held. None of
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the twenty defendants had yet been deposed, nor had any of the non-party
witnesses. The simple truth is that any time we might consume in discovery
addressing the counterclaims pales in significance to the three-year period that
elapsed with so little discovery being completed – none of which is attributable to
defendant Mauriello, and it pales in significance to the discovery required to
address plaintiff’s claims.
Second, in the two months since we filed our motion for leave to
amend, the only discovery that has been conducted is the completion of plaintiff’s
deposition, the inspections of the 81st Precinct and Jamaica Hospital, and the
depositions of defendants Michael Marino and Theodore Lauterborn. None of
that work would have to be revisited on account of the counterclaims. We asked
plaintiff the questions we wished to ask on the subject of the counterclaims, the
inspections have no bearing on the counterclaims, and, since plaintiff was on
notice that the matters alleged in the counterclaims are equally related to
Mauriello’s defense, plaintiff had the opportunity to ask Marino and Lauterborn
about those matters. (In any event, plaintiff has indicated he wants to conduct a
second session of the Marino and Lauterborn depositions for reasons unrelated
to the Mauriello counterclaims.)
Third, the fact of the matter is that it is going to be impossible to
complete fact discovery by the present deadline of January --, 2014. At the
moment, the next scheduled event is the deposition of plaintiff’s father on
December 11, 2013, in Albany. (He was unwilling or unable to appear on the
long-ago scheduled date of November 20, 2013.) Dates in mid-December are
under discussion for the depositions of defendant Mauriello and defendant
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Timothy Caughey, but no other dates have been set or even discussed.2 Much
work remains and chances are we will need until the end of February to complete
it. Again, it is not the counterclaims causing the delay, and it is not the
counterclaims causing undue prejudice or, for that matter, any prejudice at all to
the plaintiff. The discovery relating to the counterclaims easily will be completed
during the time the Court allows for the completion of all other discovery.
Finally, the lapse of time principally is due to plaintiff’s deletion from
the recordings he produced of the critical conversation he had with his father on
October 7, 2009. At all times plaintiff (as well as the City) was aware of the
content of the withheld recording. If there is any delay in the final resolution of
this matter that could be attributed to the counterclaims, the conclusion is
irrefutable that the delay would be the result of plaintiff’s own misconduct.
POINT IV
UNDER ALL OF THE CIRCUMSTANCES,
THERE IS NO SUPPORT FOR A FINDING
OF UNDUE PREJUDICE TO THE PLAINTIFF
The Court has found that the counterclaims are timely for statute of
limitations purposes (despite plaintiff’s aggressive assertion to the contrary) and
implicitly has found, as we think is evident, that the counterclaims are so related
to plaintiff’s claims as to form part of “the same case or controversy” or “derive
from a common nucleus of operative fact” warranting this Court’s exercise of
supplemental jurisdiction pursuant to 28 U.S.C. section 1367(a).

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Defendant Mauriello was to be deposed on November 22nd, but the Court’s opinion faulting us for
“waiting” to seek leave to amend the Answer was issued the night before and required that we adjourn the
deposition to make sure we fully advised Mauriello of his options on how to proceed, and to give him
adequate time to decide what to do. He has chosen to have us proceed on his behalf.

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As we expressed in our original motion papers, the Second circuit
has instructed in State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843 (2d
Cir. 1981), that “[r]easons for a proper denial of leave to amend include undue
delay, bad faith, futility of the amendment, and perhaps most important, the
resulting prejudice to the opposing party.” Id. at 856, quoting Foman v. Davis,
371 U.S. 178, 182 (1963). The Second Circuit further instructed in State
Teachers that “[m]ere delay, . . . absent a showing of bad faith or undue
prejudice, does not provide a basis for a district court to deny the right to amend.”
Id. (citations omitted). To emphasize that the case before it did not give rise to
undue prejudice, the Court in State Teachers explained that “[t]his is not a case
where the amendment came on the eve of trial and would result in new problems
of proof” (citations omitted). The same can be said in this case.
We respectfully submit that the Court’s reliance on Evans v.
Syracuse City Sch. Dist., 704 F.2d 44, 47 (2d Cir. 1983), to support a finding that
plaintiff will suffer undue prejudice is misplaced. In Evans, there was “an over
two-year” “period of an unexplained delay.” Here, the circumstances are not
even remotely similar. Defendant Mauriello did not delay at all, and the lapse of
time is substantially attributable to plaintiff deleting the critical conversation with
his father.3
So, too, is the Court’s reliance on Continental Bank, N.A. v. Meyer,
10 F.3d 1293, 1298 (7th Cir. 1993) misplaced. There, the Court concluded that
the facts alleged in the counterclaims were know by the defendant when the case

3

At the Court’s request, we will provide a copy of the audio file produced by plaintiff with the recording at
issue deleted, along with a copy of the audio file produced by the City/IAB with the recording included.

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commenced, yet the defendant waited two years to assert the counterclaims,
which would have required additional discovery. Here, not only were the facts
not known by defendant Mauriello when the case was commenced, but they
were known and withheld by the plaintiff, and were only fortuitously discovered
by defendant Mauriello three years after the action was commenced.
By knowingly keeping Mauriello in the dark, plaintiff hardly should
be heard to claim prejudice from the delay.4
.CONCLUSION
Based upon the foregoing, and defendant Mauriello’s original
motion papers, we respectfully urge the Court to reconsider defendant
Mauriello’s motion for leave to assert his counterclaims, and to grant the motion
in its entirety, together with such other relief as the Court deems just.
Dated: New York, New York
November 25, 2013
SCOPPETTA SEIFF KRETZ & ABERCROMBIE
Attorneys for Defendant STEVEN MAURIELLO

By: _____________________________
Walter A. Kretz, Jr., (WK-4645)
444 Madison Avenue, 30th Floor
New York, NY 10022
[e-mail]
212-371-4500

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As for undue prejudice, if defendant Mauriello is not permitted to pursue his counterclaims in this action,
the substantial likelihood, perverse as it may seem given that this Court has found the counterclaims to be
timely asserted, is that he will barred from pursuing his claims in another forum.

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