Schoolcraft v. The City Of New York et al

Filing 205

REPLY to Response to Motion 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 REPLY MEMORANDUM
IN FURTHER SUPPORT OF HIS MOTION FOR RECONSIDERATION
OF HIS MOTION FOR LEAVE TO AMEND HIS ANSWER
TO ASSERT COUNTERCLAIMS
Preliminary Statement
On behalf of defendant Steven Mauriello, we submit this reply
memorandum in further support of his motion for reconsideration of his motion for
leave to amend his answer to assert counterclaims. We fully appreciate plaintiff’s
recitation of the standards applicable to motions for reconsideration and believe
not only that we have fully satisfied those standards, but also that leave to amend
should be granted because justice so requires.
ARGUMENT
POINT I
DEFENDANT MAURIELLO DID NOT WAIT
TO MOVE FOR LEAVE TO AMEND
In denying our original motion, the Court observed that we “waited”
too long to seek leave to amend the answer to assert the counterclaims. In this
motion for reconsideration, we have argued, and respectfully submit, that the

Court erred in reaching this conclusion because it did not express any
consideration of, and we believe the Court therefore overlooked, the following:
i.

defendant Mauriello knew nothing of the recorded conversation,

which is the linchpin of the proposed counterclaims, until one month before we
filed the motion for leave to amend;
ii.

defendant Mauriello’s present counsel only appeared in the case a

little over one year prior to filing the motion for leave, by which time the case had
been pending for nearly two years;
iii.

defendant Mauriello’s present counsel knew nothing about the

recorded conversation at issue until one month prior to filing the motion for leave
to assert the counterclaims;
iv.

plaintiff or his prior counsel had removed from plaintiff’s October 7,

2009, recording the critical conversation between plaintiff and his father, and
instead produced an altered recording containing only the conversations that
followed that critical conversation; it is worth noting that plaintiff actually produced
two recordings of his conversations on October 7, 2009, and the critical
conversation with his father was deleted from both;
v.

plaintiff did not even attempt to refute the fact that an altered

recording had been produced in discovery; and
vi.

in summary, defendant Mauriello and his present counsel did not

earlier learn about the critical conversation between plaintiff and his father
because plaintiff or his prior counsel produced two altered copies of the
recording, with the conversation removed.

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Plaintiff now asserts in opposition to this motion for reconsideration
that our assertion plaintiff or his prior counsel deleted the critical conversation
from the October 7, 2009, recording is a “new claim” by defendant Mauriello, not
raised in our original motion for leave to assert the counterclaims. Plaintiff clearly
is wrong. In paragraph 18 of the September 24, 2013, Declaration of the
undersigned, submitted in support of the motion for leave to assert the
counterclaims, it was explained that plaintiff had removed the critical
conversation with his father from the recording of October 7, 2009. We also
explained that we did not learn of the conversation until reading the Rayman
book, which was not published until August 2013. Plaintiff did not challenge
either assertion. Moreover, at oral argument of the motion on November 13,
2013, the undersigned fully explained to the Court plaintiff’s deletion of the critical
conversation and its significance to the motion for leave to assert the
counterclaims, to which plaintiff offered no rebuttal.
Thus, defendant Mauriello did not “wait” at all to assert his
proposed counterclaims. He did not learn of the conversation critical to the
counterclaims because plaintiff had deleted it from the duplicate copies of the
October 7, 2009, recordings produced in discovery. We then sought leave to
amend approximately one month after learning of the conversation in August
2013. We urge the court not to penalize defendant Mauriello for a lapse in time
resulting from plaintiff’s withholding of the critical evidence.

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POINT II
DESPITE PLAINTIFF’S NEWLY ASSERTED CHALLENGE,
THERE IS NO DOUBT AN ALTERED RECORDING
WAS PRODUCED IN DISCOVERY
With respect to plaintiff’s production in discovery of duplicate
recordings of his October 7, 2009, conversations, with the critical conversation
between plaintiff and his father deleted from each, plaintiff now asserts for the
first time, in opposition to the motion for reconsideration, that we are unable to
demonstrate an altered recording was produced by plaintiff in discovery. The
fact is we certainly are able to do so, and would have done so in our reply on the
original motion for leave to assert the counterclaims had plaintiff questioned the
truth of our assertion. (Since plaintiff did not submit an affidavit refuting our
assertion when opposing the original motion, we do not know if it was plaintiff or
his prior counsel who deleted the critical conversation from each of the October
7, 2009, recordings.) With the Court’s permission, we will submit the two altered
recordings produced by plaintiff as well as the complete recording produced by
the City for the Court’s review so that our assertion may be confirmed.
POINT III
THE COUNTERCLAIMS PRESENT
NO RISK OF UNDUE PREJUDICE TO PLAINTIFF
In denying our motion for permission to assert the counterclaims,
the Court also found that the counterclaims would unduly delay the trial of this
action, and thus cause plaintiff prejudice. We believe the Court has overlooked
the causes of the delay of the case to date, most of which apparently are
attributable to plaintiff, and certainly have nothing to do with defendant Mauriello

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or his counterclaims. (For example, a full year elapsed between the first and
second sessions of plaintiff’s deposition for reasons substantially attributable to
plaintiff and his retention of new counsel.) We also respectfully submit that the
Court has misapprehended the extent of any potential additional delay. Any
discovery relating to the counterclaims would be modest and could not fairly be
deemed a cause of the delay of the trial given the many causes to date and the
many that continue to occur.
We also respectfully submit that the Court has overlooked the
absence of any identifiable undue prejudice plaintiff might suffer even if there
were some slight delay that might be fairly attributed to the counterclaims. Again,
plaintiff has been the cause of a great deal of the continuing delay, which alone
should cause him to forfeit any claim of prejudice from any far less significant
lapse of time caused by the counterclaims, especially since it would be occurring
at a time when the parties are in the midst of discovery (and not on the eve of
trial). In addition, any delay that might be caused by the counterclaims would
have been avoided had plaintiff or his prior counsel not altered his duplicate
recordings of October 7, 2009, by deleting the critical conversation between
plaintiff and his father.
Finally, the Court should be aware that plaintiff’s counsel has asked
defendants to consent to a two-month extension of the discovery schedule due to
his schedule and plaintiff’s personal circumstances that have made it impossible
to adhere to the existing scheduling order. All parties have consented to the
extension and are in agreement it is needed. We are awaiting plaintiff’s
submission to the Court of a request for approval. This need for additional time
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has nothing to do with defendant Mauriello or his counterclaims, but there is no
doubt that with an extension of the discovery deadline, any discovery relating to
the counterclaims would be completed without difficulty, and any risk that plaintiff
might suffer undue prejudice would be eliminated.

CONCLUSION
Based upon the foregoing, the memorandum in support of this
motion for reconsideration, and the original papers in support of the motion for
leave to assert the counterclaims, we respectfully request that the Court exercise
supplemental jurisdiction over defendant Mauriello’s proposed counterclaims,
which the Court has determined to be timely, and permit him to serve his
amended Answer.
Dated: New York, New York
December 16, 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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