Kaplan v. New York State Department of Labor et al

Filing 91

ORDER denying 90 Letter Motion for Discovery. Application DENIED. The Court has personally observed counsel's auditory abilities in numerous court appearances, both in-person and telephonic, and continues to believe that depositions by video conference strike the best balance between counsel's needs and everyone's health concerns. (Signed by Judge Katherine Polk Failla on 3/31/2020) (rro)

Counseling and Advising Clients Exclusively on Laws of the Workplace

Zabell & Collotta, P.C.
1 Corporate Drive
Suite 103
Bohemia, New York 11716
Tel. [phone]
Fax. [phone]
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Saul D. Zabell
Email: [e-mail]

March 31, 2020

VIA ELECTRONIC MAIL: [e-mail] &
VIA ELECTRONIC CASE FILING
The Honorable Katherine Polk Failla
United States District Judge
United States District Court
Southern District of New York
40 Foley Square, Room 2103
New York, New York 11722
Re:

MEMO ENDORSED

Kaplan v. NYS Dep’t. of Labor
Case No.: 18-CV-3629 (KPF)

Your Honor:
This firm is counsel to Plaintiff in the above-referenced matter. We
respectfully submit the foregoing pursuant to Federal Rule of Civil Procedure
60(b)(6) in response to the Court’s March 30, 2020 Order [ECF Doc. No. 89].
While of course bound by Your Honor’s Order, we are concerned it may fail
to fully consider the scope of my auditory limitations. The sensory deprivation
experienced in a remote situation deprives me the ability to fully and fairly
examine witnesses. By virtue of my limitations I rely on visual cues more than
most. To that end, video clouds body language. This lack of interpersonal contact
during the deposition represents a tangible disadvantage to me. And, as stated
under prior cover, Defendant is acutely aware of my disability, itself
accommodating requests for in-person hearings.
We note for the Court that Plaintiff has filed a State Court action (Index
No. 619183/209) against three (3) of the deponents: Messrs. Ben-Amotz,
Paglialonga, and Ms. Dix. The Court’s March 30, 2020 Order necessitates that
each anticipated deponent will now need to appear for an in-person reexamination to cure the inevitable deficiencies stemming from remote depositions.
We therefore respectfully request the Court reconsider its Order directing
that the depositions of this matter occur through video conference. In so doing, we

March 31, 2020
Page 2 of 2
also respectfully ask the Court reconsider extending the deadline of April 17, 2020
to May 17, 2020. This proposed date incorporates the anticipated curtailment of
social distancing guidelines through the end of April 2020. See
https://www.nytimes.com/2020/03/29/world/coronavirus-live-news-updates.html.
We thank the Court for is continued time and attention to this matter.
Counsel remain available should the Court require.
Respectfully submitted,
ZABELL & COLLOTTA, P.C.

Saul D. Zabell
cc:

Client
All Counsel of Record (via Electronic Case Filing)

Application DENIED. The Court has personally observed counsel's auditory
abilities in numerous court appearances, both in-person and telephonic,
and continues to believe that depositions by video conference strike the
best balance between counsel's needs and everyone's health concerns.
Dated:

March 31, 2020
New York, New York

SO ORDERED.

HON. KATHERINE POLK FAILLA
UNITED STATES DISTRICT JUDGE