Schoolcraft v. The City Of New York et al

Filing 219

FILING ERROR - ELECTRONIC FILING OF NON-ECF DOCUMENT - LETTER MOTION for Local Rule 37.2 Conference Reply to January 30, 2014 Letter Motion addressed to Judge Robert W. Sweet from Suzanna Publicker Mettham dated February 14, 2014. Document filed by Christopher Broschart(Tax Id. 915354 in his official capacity), Christopher Broschart(Tax Id. 915354 Individually), Timothy Caughey(Tax Id. 885374 Individually), Timothy Caughey(Tax Id. 885374 in his official capacity), Kurt Duncan(Shield No. 2483, Individually), Kurt Duncan(Shield No. 2483 in his official capacity), William Gough(Tax Id. 919124, Individually), William Gough(Tax Id. 919124, in his Official Capacity), Thomas Hanley(Tax Id. 879761, in his Official Capacity), Thomas Hanley(Tax Id. 879761, Individually), Elise Hanlon(in her official capacity as a lieutenant with the New York City Fire Department), Elise Hanlon(individually), Shantel James(Shield No. 3004 in his official capacity), Shantel James(Shield No. 3004 Individually), Theodore Lauterborn(Tax Id. 897840 in his official capacity), Theodore Lauterborn(Tax Id. 897840, Individually), Michael Marino, Michael Marino, Gerald Nelson(Assistant Chief Patrol Borough Brooklyn North, Tax Id. 912370 in his official capacity), Gerald Nelson(Assistant Chief Patrol Borough Brooklyn North, Tax Id. 912370, Individually), Robert W. O'Hare(Tax Id. 916960, Individually), Robert W. O'Hare(Tax Id. 916960, in his Official Capacity), Frederick Sawyer(Shield No. 2576 in his official capacity), Frederick Sawyer(Shield No. 2576, Individually), The City Of New York, Timothy Trainer(Tax Id. 899922, in his Official Capacity), Timothy Trainer(Tax Id. 899922, Individually), Richard Wall, Sondra Wilson(Shield No. 5172, in her Official Capacity), Sondra Wilson(Shield No. 5172, Individually). Return Date set for 2/11/2014 at 12:00 PM. (Attachments: # 1 Exhibit A - Transcript of January 15, 2014 Conference)(Mettham, Suzanna) Modified on 2/18/2014 (db).

THE CITY OF NEW YORK

LAW DEPARTMENT

ZACHARY W. CARTER
Corporation Counsel

100 CHURCH STREET
NEW YORK, NEW YORK 10007

SUZANNA PUBLICKER METTHAM
Assistant Corporation Counsel
E-mail: [e-mail]
Phone: [phone]
Fax: [phone]

February 14, 2014
BY ECF
Honorable Robert W. Sweet
United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 10007
Re: Schoolcraft v. The City of New York, et al.
10 CV 6005 (RWS)
Your Honor:
I am an Assistant Corporation Counsel in the office of Zachary W. Carter,
Corporation Counsel of the City of New York, assigned to represent the City Defendants in the
above-referenced matter. City Defendants write in further support of their January 30, 2014 letter
motion to respectfully request the Court preclude plaintiff from relying, in any way whatsoever,
on documents and witnesses which he was ordered to identify no later than January 22, 2014, or
at the very latest, January 26, 2014.
As an initial matter, City Defendants note that pursuant to this Court’s Order,
opposition papers, if any, were to be served in accordance with Local Civil Rule 6.1. (See
Docket Entry No. 215.) According to Local Civil Rule 6.1, an opposition is to be served within
seven days after service of the moving papers, and thus, plaintiff’s opposition should have been
served upon the undersigned on or before February 6, 2014. Plaintiff never sought consent from
City Defendants for an extension of time to respond, and instead claimed that he had an ex parte
oral communication with the Court, in which the Court granted him an enlargement of time to
respond until February 11, 2014. (See Pl. Letter dated 02/10/2014.) There is no such Order on
the Docket Sheet regarding this alleged ex parte communication, and plaintiff never sought to
have the City Defendants be present on any such phone call with the Court.
Regardless, plaintiff still replied a day late even with the alleged extension. In
light of plaintiff’s continued inability to respond to motions and Orders within the time set by the
Court, City Defendants respectfully request that the motion be deemed unopposed and that the
Court so-order the City Defendants’ previously requested Proposed Order. However, to the
extent the Court is inclined to consider plaintiff’s belated opposition, the transcript of January
15, 2014 conference shows that plaintiff’s stated understanding of the Court’s Orders are at best,
willfully ignorant, and at worst, conscious misstatements of the record. See Tr. of 01/15/14
Conference, annexed hereto as Exhibit A.

Names and Contact Information
On January 15, 2014, the Court ordered plaintiff to provide defendants, within
seven to ten days of the conference, the names and contact information of all the individuals
whose emails and other correspondence was previously produced without that information. The
Court stated that as long as plaintiff was not going to rely on these witnesses at trial, the
documents bearing the witnesses’ names and contact information would remain Attorneys’ Eyes
Only. On January 24, 2014, in blatant violation of Your Honor’s Order, City Defendants
received only un-redacted reproductions of the documents bearing Bates Nos. AS10059AS10144.
Plaintiff’s opposition dated February 12, 2014 misses the point by stating that he
provided un-redacted documents bearing Bates Nos. AS10059-AS10144; City Defendants do not
dispute that fact. However, City Defendants asked, and the Court ordered in no uncertain terms
that plaintiff was required to also produce without redaction the documents previously produced
on October 24, 2012 in response to City Defendants’ Second Set of Document Requests,
Document Request No. 2. See City Defendants Letter Motion dated 12/18/13 at 2. As plaintiff
has failed to produce records in accordance with the January 15, 2014 Order of the Court, it is
respectfully requested that plaintiff be precluded in discovery, motion practice, and at trial from
relying on documents previously produced on October 24, 2012 in response to City Defendants’
Second Set of Document Requests, Document Request No. 2, or the information contained
therein.
Witnesses
Plaintiff’s opposition falsely claims that the Court allowed him to designate
witnesses within 30 days after the production of unredacted documents, listed above, thus
permitting him to wait until February 21, 2014 to designate witnesses for his case. In fact, on
January 15, 2014, the Court clearly ordered plaintiff to identify within seven to ten days of the
conference, the individuals from the previous productions that plaintiff intended to rely upon as
witnesses in this matter. See Tr. of 01/15/14 Conf. at 8:8-13; 10:5-13, annexed hereto as Ex. A
(“THE COURT: So within a week you'll advise -- one, you'll give the City all of the information,
eyes only for attorneys; and within a week if you're going to use any of these people, you will
notify the City within a week or, say, ten days so that they will have an opportunity, if they
choose to, to depose them. MR. SMITH: Very well.”) (emphasis added). The Court on January
15, 2014, and the transcript thereof could not have been any clearer on this matter.
As discovery closes in this matter on March 14, 2014, it would be grossly
prejudicial to City Defendants to allow plaintiff to designate witnesses with less than three weeks
left in discovery, when plaintiff has known of these witnesses’ identities for years and
intentionally withheld this crucial information from defendants. City defendants submit that
plaintiff has waived the right to call any witnesses identified within the documents bearing Bates
Nos. AS10059-AS10144 and the documents produced on October 24, 2012 in response to City
Defendants’ Second Set of Document Requests, Document Request No. 2 at trial in this matter,
and ask that the Court order the same.

2

Accordingly, because plaintiff has intentionally violated Your Honor’s January
15, 2014 Order he should be sanctioned as set forth herein. Thank you for your consideration of
these requests.
Sincerely yours,
/s
Suzanna Publicker Mettham
Assistant Corporation Counsel
Special Federal Litigation Division
cc:

Nathaniel Smith (By ECF)
Attorney for Plaintiff
111 Broadway, Suite 1305
New York, New York 10006
Gregory John Radomisli (By ECF)
MARTIN CLEARWATER & BELL LLP
Attorneys for Jamaica Hospital Medical Center
220 East 42nd Street 13th Floor
New York, NY 10017
Brian Lee (By ECF)
IVONE, DEVINE & JENSEN, LLP
Attorneys for Dr. Isak Isakov
2001 Marcus Avenue, Suite N100
Lake Success, New York 11042
Bruce M. Brady (By ECF)
CALLAN, KOSTER, BRADY & BRENNAN, LLP
Attorneys for Lillian Aldana-Bernier
1 Whitehall Street
New York, New York 10004
Walter A. Kretz , Jr. (By ECF)
SCOPPETTA SEIFF KRETZ & ABERCROMBIE
Attorney for Defendant Mauriello
444 Madison Avenue, 30th Floor
New York, NY 10022

3