Capaccio et al v. Zafuto et al

Filing 36

DECISION AND ORDER. Plaintiffs' motion (Dkt. 27) is GRANTED in part and DENIED in part as to Plaintiffs' First Document Request, Plaintiffs' Request No. 3, and Plaintiffs' requests, as stated in Plaintiffs' Memorandum, direct ed to Plaintiffs' Equal Protection Claims Request. As required by Fed.R.Civ.P. 37(a)(5)(A), Defendants shall, within 20 days of this Decision and Order, show cause why Plaintiffs' expenses incurred in connection with Plaintiffs' mo tion, including reasonable attorneys fees, should not be awarded to Plaintiffs; Plaintiffs' response shall be filed within 10 days thereafter; Defendants' reply, if any, shall be filed within 5 days. Plaintiffs shall show cause, within 20 days, as required by Fed.R.Civ.P. 37(a)(5)(B), why Defendants expenses, including reasonable attorneys fees, incurred in successfully opposing Plaintiffs motion with respect to Plaintiffs Request No. 3, and Plaintiffs Equal Protection Claims Reque st document requests should not be award to Defendants; Defendants response shall be served within 10 days thereafter; Plaintiffs' reply, if any, shall be filed within 5 days. Oral argument shall be at the court's discretion. Signed by Hon. Leslie G. Foschio on 3/6/2025. (SDW)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
JOSEPH CAPACCIO,
J-CAP CONTRACTORS, LLC,
v.

DECISION
and
ORDER

Plaintiffs,

DAVE ZAFUTO, Individually and in his Capacity
as Board Member for the City of Buffalo Construction
and Home Improvement Board,
PATRICK SOLE, Individually and in his Capacity
as Board Member for the City of Buffalo Construction
and Home Improvement Board,
VINCENT FERRARCCIO, Individually and in his Capacity
as Board Member for the City of Buffalo Construction
and Home Improvement Board,
JOSEPH ZAPPIA, Individually and in his Capacity
as Board Member for the City of Buffalo Construction
and Home Improvement Board,
JUDY PORTO-FIORELLA, Individually and in her Capacity
as Senior Account Clerk for the City of Buffalo Permits
& Inspection Services,
THE CITY OF BUFFALO,
JOHN DOE, Individually and in his/her capacity as an
Employee for the City of Buffalo,

23-CV-540-JLS(F)

Defendants.
_____________________________________
APPEARANCES:

RUPP PFALZGRAF LLC
Attorneys for Plaintiffs
CHAD A. DAVENPORT,
MATTHEW E. GABALSKI,
R. ANTHONY RUPP, III, of Counsel
1600 Liberty Building
424 Main Street
Buffalo, New York 14202
CAVETTE A. CHAMBERS
CORPORATION COUNSEL
CITY OF BUFFALO
Attorney for Defendants
ROBERT E. QUINN,

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Deputy Corporation Counsel, of Counsel
65 Niagara Square
1103 City Hall
Buffalo, New York 14202
In this § 1983 action, Plaintiffs seek compensatory and punitive damages based
on Defendants’ alleged violation of Plaintiffs’ Fourteenth Amendment rights. 1 Plaintiffs’
claims arise in connection with a residential roofing repair contract Plaintiffs made with a
Buffalo homeowner, one Ms. Louise Alessandra (“Ms. Alessandra”), on October 5, 2019
for work to be performed by Plaintiffs at 845 Richmond Avenue in the City of Buffalo
(“845 Richmond Avenue”), Ms. Alessandra’s residence (“the residence”). Plaintiffs’
work, which was completed in November 2019, was provided to remediate defective
roofing work on the rear part of the roof at the residence by a different unlicensed
contractor who had abandoned the work. Plaintiffs were contractors licensed by the
Defendant City of Buffalo (“City”). 2 Plaintiffs allege that they agreed with Ms.
Alessandra to install “OSB” 3 on the front portion of her roof with a shingle, presumably
asphalt, replacement of the entire roof. According to Plaintiffs, during Plaintiffs’ work on
the roof, Plaintiffs discovered that the prior contractor had installed plywood sheeting
over shakewood shingles on part of the rear portion of the roof which resulting in rain
leaking into Ms. Alessandra’s home. When confronted with Plaintiffs’ estimate of an

In the First Cause of Action, the Complaint does not specify which Fourteenth Amendment rights
Defendants are alleged to have violated, i.e., Due Process or Equal Protection. See Complaint ¶¶ 127129. In Plaintiffs’ Fourth and Fifth Causes of Action, Complaint ¶¶ 147, 156; ¶¶ 162, 166, Plaintiffs allege
procedural Due Process violations; in Plaintiffs’ Sixth Cause of Action, Plaintiffs allege a substantive Due
Process violation. Complaint ¶ 175.
2 The record is unclear with regard to whether both Plaintiffs or one of them was licensed by the City.
3 “OSB” is not defined in the record. According to the court’s research, “OSB” refers to “oriented strand
board” which is “an engineered wood panel that shares many of the strength and performance
characteristics of plywood,” and “is suitable for a variety of end uses including . . . roof sheathing . . . .”
Oriented Strand Board (OSB), available at https://www.apawood.org/osb, last visited February 19, 2025.
1

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additional cost of $3,240 to remedy this defect, Ms. Alessandra declined to authorize
the additional work causing Plaintiffs to complete the roofing work by installing new
shingles on both the rear and front portion of the roof, including over the plywood which
the prior contractor had installed on the rear portion of the roof, as Plaintiffs’ contract
with Ms. Alessandra provided. Despite new gutters installed by Plaintiffs on the
residence at the owner’s request, payment of $13,500 without objection from Ms.
Alessandra and Plaintiff’s work passing inspection by a City building inspector in
December 2019, on September 21, 2020, Plaintiffs were served with a Notice of
Violation of the City’s Building Code based on the Ms. Alessandra’s complaint asserting
that Plaintiffs’ work on the roof at 845 Richmond Avenue was improperly performed
(“the complaint”), 4 specifically, that Plaintiffs failed to tear off the plywood and
shakewood from the rear portion of the roof before installing the new shingles. The
Notice required Plaintiffs to appear at a hearing on the complaint before the City’s
Construction and Home Improvement Board (“the Board”) 5 scheduled for October 28,
2020 (“the hearing”). 6
At the hearing, Plaintiffs were criticized by the Board for not contracting with the
owner to replace the entire roof in the owner’s home and refused to consider Plaintiffs’
records pertaining to Plaintiffs’ work. The Board also failed to provide Plaintiffs with any

A copy of Ms. Alessandra’s complaint is not included in the record.
The Complaint refers to the Board as the City of Buffalo Construction and Home Improvement Board
(Complaint ¶¶ 9, 11, 12); Defendants refer to the Board as “the Home Improvement Advisory Board.”
See Declaration of Robert E. Quinn, Deputy Corporation Counsel (“Quinn Declaration”) (Dkt. 31) ¶ 25.
The court presumes the referenced Boards under somewhat differing names, refer to the same Board.
6 Defendants Zafuto, Sole, Ferrarccio, and Zappia are sued as members of the Board and in their
individual capacities; Defendant Porto-Fiorella is sued as the Senior Account Clerk of the City’s
Department of Inspections and Licenses and in her individual capacity. During the relevant period
Defendants Zafuto and Ferrarccio also were employed as the City’s Chief Building Inspector of new
building construction and as a residential building inspector, respectively. Ferrarccio was later appointed
Chief Building Inspector of residential construction. See Dkt. 31-8 at 27.
4
5

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notice of a formal decision on the complaint and failed to give Plaintiffs any explanation
regarding how to remedy the dispute. On behalf of the Board, Defendant Zappia, who
had been appointed to the Board by the City’s Commissioner of Inspections and
Licenses (see Dkt. 31-11 at 10), advised Plaintiffs following the hearing that the Board
had decided that Plaintiffs’ licenses to perform home repairs within the City were
suspended pending Plaintiffs’ reimbursement of money the owner had paid Plaintiffs for
the roofing job. Thereafter, as a result of Zappia’s notification to Plaintiffs of the
suspension of Plaintiffs’ licenses, Plaintiffs commenced an Article 78 proceeding in state
court 7 challenging Defendants’ suspension of Plaintiffs’ licenses based on Plaintiff’s
failure to financially resolve the complaint by reimbursing the owner, as required,
according to Zappia, by the Board. As a result of the Article 78 proceeding, Plaintiffs’
license was formally reinstated in June 2021. Plaintiffs allege the foregoing actions
taken by the Board and City caused Plaintiffs to lose numerous new projects within the
City during the period Plaintiffs’ licenses were suspended.
Plaintiffs’ motion, filed November 27, 2024 (Dkt. 27) (“Plaintiffs’ motion”), seeks
to compel Defendants provide full and complete responses to Plaintiffs’ First, Second,
Third and Fourth Requests for Document Production pursuant to Fed.R.Civ.P. 34(a)(1)
(“Rule 34(a)(1)”) (“Plaintiffs’ First, Second, Third, and Fourth Set of Document
Requests”) and Plaintiffs’ First Set of Interrogatories pursuant to Fed.R.Civ.P.
33(b)(1)(A)(B)(3), (5) (“Rule 33(b)__”). Declaration of Chad A. Davenport, Esq. (Dkt.
27-12) (“Davenport Declaration”) ¶¶ 4, 5. Plaintiffs’ First Set of Document Requests,
(Dkt. 27-1) at 7, and Interrogatories (Dkt. 27-7) at 19, were served October 10, 2023;
Pursuant to N.Y.C.P.L.R. 7800, New York State Supreme Court may nullify a state or local
governmental agency’s action as being arbitrary, capricious, or contrary to law.
7

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Defendants’ Responses to Plaintiffs’ First Set of Document Requests and
Interrogatories’ answers were served November 9, 2023, (Dkt. 27-2) at 12, and (Dkt.
27-2) at 33. 8 Plaintiffs’ Second Set of Document Requests was served June 31 [sic],
2024 (Dkt. 27-4) at 6; Defendants’ Responses thereto, (Dkt. 27-5) at 1, were served
August 29, 2024 (Dkt. 27-5) at 5. 9 Plaintiffs’ Third Set of Document Requests (Dkt. 276) at 2, was served August 9, 2024 (Dkt. 27-6) at 7; Defendants’ Responses to
Plaintiffs’ Third Set of Document Requests (Dkt. 27-7) at 80, were served September 9,
2024 (Dkt. 27-7) at 90. 10 Plaintiffs’ Fourth Set of Document Requests (Dkt. 27-8) at 2
was served October 14, 2024 (Dkt. 27-8) at 6. The record does not indicate when
Defendants’ Responses to Plaintiffs’ Fourth Set of Document Requests were served.
According to Defendants, Defendants’ responses to Plaintiffs’ Fourth Set of Document
Requests were served, see Quinn Declaration ¶ 7 (referencing Quinn Declaration
Exhibit D) (Dkt. 31-4), however, the court’s review of Exhibit D indicates Exhibit D
contains only Defendants’ Responses to Plaintiffs’ Third Set of Document Requests.
See (Dkt. 31-4) (passim). Defendants’ Responses to Plaintiffs’ Fourth Set of Document
Requests do not appear elsewhere in the record. Oral argument was deemed
unnecessary.
1.

Plaintiffs’ First Set of Document Requests.

Plaintiffs’ initial Deficiency Letter apprising Defendants of Defendants’ failure to include the requested
documents as referred to in Defendants’ responses was sent December 1, 2023. Davenport Declaration
(Dkt. 27-12) ¶ 5.
9 On September 18, 2024, Plaintiffs sent Plaintiffs’ second Deficiency Letter advising Defendants that
Defendants’ Response to Plaintiffs’ Second Set of Document Requests also failed to include responsive
documents. Davenport Declaration ¶ 10.
10 A meet and confer conference required by Fed.R.Civ.P. 37(a)(1) (“Rule 37(a)(1)”) was conducted by
the parties on November 1, 2024. Davenport Declaration ¶ 13.
8

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Plaintiffs contend Defendants have failed to properly identify and produce copies
of documents responsive to Plaintiffs’ First Set of Document Requests. Plaintiffs’
Memorandum of Law (Dkt. 27-13) (“Plaintiffs’ Memorandum of Law”) at 2. Plaintiffs also
assert Defendants failed to conduct reasonable searches for all responsive documents
including audio recordings of relevant Board meetings. Id. at 2, 3. In response,
Defendants maintain Defendants fully complied with Plaintiffs’ requests on November 9,
2023. Quinn Declaration ¶¶ 6, 7. Defendants’ Responses consisted of a 47-page PDF
file, an MP3 audio file labelled “J-Cap Hearing,” and screenshots from Defendants’
“Code Enforcement Case Info/Viewer account.” See Plaintiffs’ Memorandum of Law
(Dkt. 27-13) at 3. Plaintiff’s First Set of Document Requests also requested all
documents pertaining to Ms. Alessandra’s complaint regarding Plaintiffs’ work at 845
Richmond Avenue, the October 28, 2020 meeting of the Board concerning the
complaint, copies of the Board’s rules and regulations, all documents concerning
suspension of Plaintiffs’ contractor licenses, all documents pertaining to the City’s
inspections of Plaintiffs’ work at 845 Richmond Avenue, and copies of all e-mails and
written correspondence regarding 845 Richmond Avenue.
Defendants’ responses to Plaintiffs’ requests include generalized objections,
including vagueness, undue burdensomeness, overbreadth, lack of relevancy, and
several privileges11 and that “Defendants are aware of the documents attached hereto.”
12

See, e.g., Defendants’ Responses to Plaintiff’s First Set of Document Requests at 6

Given Defendants’ statement that the privileges were asserted “as a precaution,” Quinn Declaration ¶
55, and that no documents have been withheld by Defendants based on any asserted privileges, id., the
court does not address whether such privileges have any applicability.
12 Although Defendants’ responses include a statement that responsive documents are “attached hereto,”
see (Dkt. 31-1) (Exh. A to Quinn Declaration), and Dkt. 31-3 (Exh. C to Quinn Declaration), no such
documents were included with Defendants’ responses to Plaintiffs’ First, Second and Third Document
Requests. Davenport Declaration ¶¶ 4, 8; (Dkt. 27-7) at 3.
11

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(Defendants’ Response to Plaintiffs’ Request No. 1 seeking “All Documents concerning
Building Permit Number REP19-9499226, which was issued to the Plaintiffs for the
repair to Ms. Alessandra’s roof, and which was issued on November 14, 2019.”).
Plaintiffs contend that such non-specific document references fail to respond with
sufficient particularity to enable Plaintiffs to reasonably discern which documents
produced by Defendants are responsive to Plaintiffs’ specific requests. See Plaintiffs
Memorandum of Law. In Plaintiffs’ September 18, 2024 Deficiency Letter, Plaintiffs
argued Defendants had, to date, failed to provide responsive documents. See (Dkt. 277) at 2.
In opposition to Plaintiffs’ motion, Defendants maintain that Defendants have, in
addition to the PDF files, one audio file of the October 28, 2020 Board meeting, and
screenshots, also produced 107 pages of documents responsive to Plaintiffs’ First,
Second, Third and Fourth Document Requests. See Quinn Declaration ¶ 8 (“[a]ll of
these productions” constituted documents reproduced in Exh. E (Dkt. 31-5) to the Quinn
Declaration that were served on Plaintiffs through a shared “drop box” file folder “with
each [of the 107] pages Bates stamped.”) 13 Plaintiffs’ opposition to the Quinn
Declaration is based on the requirement that each document produced should be
identified as responsive to each particular Plaintiffs’ request citing Fed.R.Civ.P.
34(b)(2)(B). See Plaintiffs’ Memorandum of Law at 5. See also Plaintiffs’ Reply
Memorandum of Law (Dkt. 35) (“Plaintiffs’ Reply”) at 6 (contending Defendants’
document production demonstrates “systemic deficiencies” including that Defendants’

The record is unclear as to whether the 47 pages of PDF documents, not further described by
Defendants, see Plaintiffs’ Memorandum of Law at 3, are included in the 107 pages of documents
produced in Quinn Declaration Exh. E.

13

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production fails to “identify[ ] specific documents” responsive to each of Plaintiffs’
Requests. 14
As relevant, Fed.R.Civ.P. 34(b)(2)(E)(i) provides that ‘[a] party must produce
documents as they are kept in the ordinary course of business or must organize and
label them to correspond to the categories in the requests.” (“Rule 34(b)(2)(E)(i)”).
“Courts ‘routinely ‘require responding parties to provide documents in some kind of
organized, indexed fashion rather than as a mess of undifferentiated, unlabeled
documents.’’” Laboy v. Quality Automotive Services, Inc., 2023 WL 10354091, at *4
(E.D.N.Y. June 20, 2023) (quoting Rahman v. The Smith & Wollensky Rest. Grp., Inc.,
2009 WL 773344, at *4 (S.D.N.Y. Mar. 18, 2009) (quoting Sparton Corp. v. United
States, 77 Fed.Cl. 10, 16 (Fed.Cl. 2007))). “Accordingly, where documents produced
‘were not organized and labeled to correspond to the categories specified in’ the
document requests in response to which the documents were produced, courts have
directed the producing party to re-produce the documents, Bates-stamped, with an
‘itemized list which sets forth, by [B]ates-number, the documents responsive to each of
the [document] requests.’” Id. (quoting Ng v. HSBC Mortg. Corp., 2009 WL 205048, at
*3 (E.D.N.Y. Jan. 27, 2009)); see also Mee Jin-Jo v. JPMC Specialty Mortg. LLC, 2011
WL 1198133, at *2 (W.D.N.Y. Mar. 29, 2011) (“The plaintiff's production of documents
responsive to the defendants' Notice to Produce was deficient in [that] . . . the
documents were not organized and labeled to correspond to the categories specified in
the Notice as required by Rule 34(b)(2)(e)(i).”).

14 The court has discretion to consider arguments presented in a party’s reply. See Am. Hotel Int'l Grp.,
Inc. v. OneBeacon Ins. Co., 611 F. Supp. 2d 373, 375 (S.D.N.Y. 2009) (“[T]he Second Circuit has made it
abundantly clear that a district court has discretion to consider a belatedly-raised argument [in reply]”
(emphasis original)), aff'd, 374 Fed.Appx. 71 (2d Cir. 2010).

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Here, the court finds that Defendants’ production in response to Plaintiffs’ First
Document Requests as provided by Defendants’ 47 page PDF file, an MP3 audio file,
screenshots and the 107 pages of documents referenced in Quinn Declaration Exh. E,
fail to particularize to which of Plaintiff’s 18 requests any of the documents produced, as
stated in Plaintiffs’ First Set of Document Requests, is responsive to each request as
Rule 34(b)(2)(E)(i) requires. Defendants’ general objections are ineffective because
they fail to provide specific support for Defendants’ assertions of vagueness, undue
burdensomeness and overbreadth. See Guillory v. Skelly, 2014 WL 4542468, at *8
(W.D.N.Y. Sept. 11, 2014) (the party objecting to discovery requests “must show,
specifically, how, despite broad and liberal construction of discovery rules, each request
is not relevant, or is overly broad, burdensome, or oppressive”) (citing US Bank National
Association v. PHL Variable Insurance Co., 288 F.R.D. 282, 285 (S.D.N.Y. 2012) (citing
Fed.R.Civ.P. 26(b)(2)(C))). Defendants’ generalized objections based on the assertion
that Plaintiff’s requests are vague, unduly burdensome and overbroad are therefore
OVERRULED.
Defendants’ objection to Plaintiffs’ Request No. 3 of Plaintiffs’ First Set of
Document Requests requesting copies of eight City Building Inspection records is
predicated on overbreadth, undue burdensomeness and that it “is not likely to result in
the production of admissible evidence” (“Plaintiffs’ Request No. 3”). See (Dkt. 27-2) at
7. Although, as discussed, supra, Defendants’ opposition to Plaintiffs’ motion does not
explain the basis of Defendants’ generalized overbreadth and undue burdensomeness
objections thus requiring such objections be overruled, Plaintiffs fail to address
Defendants’ objection because the request “is not likely to result in the production of

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admissible evidence.” See Plaintiffs’ Memorandum of Law at 15 (arguing Defendants’
objections based on undue burdensomeness and overbreadth lack necessary specifics
in support). The court therefore finds that Plaintiffs have failed to satisfy Plaintiffs’
burden to establish the request seeks relevant information under Fed.R.Civ.P. 26(b)(1)
(“Rule 26(b)(1)”). See Lightsquared Inc. v. Deere & Company, 2015 WL 8675377, at *5
(S.D.N.Y. Dec. 10, 2015) (citing Fort Worth Employees' Retirement Fund v. J.P. Morgan
Chase & Co., 297 F.R.D. 99, 107 (S.D.N.Y. 2013) (party seeking to compel document
production has burden of establishing the documents are relevant to the party’s claim or
defense).
Here, Plaintiffs argue in opposition to Defendants’ objection to Plaintiffs’ Request
No. 3 that such request “is not likely to result in the production of admissible evidence,”
see Defendants’ Response to Plaintiffs’ First Set of Document Requests (Dkt. 27-7) at
26-27, states an “outdated” standard, see Plaintiffs’ Memorandum of Law at 15 thereby
referencing Rule 26(b)(1) prior to its amendment in 2015. Specifically, prior to 2015,
Rule 26(b)(1) permitted parties to “obtain discovery regarding any nonprivileged matter
that is relevant to any party's claim or defense.” Rule 26(b)(1). Further, the Rule did not
require that relevant information “be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” Id. In 2015,
Rule 26(b)(1) was amended to provide that “[p]arties may obtain discovery regarding
any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the importance of the issues at stake
in the action . . ..”

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Although Defendants did not specifically object to Plaintiffs’ Request No. 3 that
the requested records are not “relevant,” because the breadth of relevant information is
broader under revised Rule 25(b)(1) than what may lead to admissible evidence,
Defendants’ objection that the requested records “are not likely to lead to admissible
evidence” can only be understood as asserting that the requested records seek
information irrelevant to Plaintiffs’ claims. See Matalavage v. Sheriff of Niagara County,
2023 WL 2043865, at * 2 (W.D.N.Y. Feb. 16, 2023) (“‘Material is relevant for Rule
26(b)(1) discovery purposes if it bears on or is germane to any issue in the case or that
may become an issue, but such material need not be admissible as evidence to be
subject to discovery as provided in Rule 26(b)(1).’” (quoting Thuman v. Dembski, 2022
WL 1197551, at *5 (W.D.N.Y. Apr. 22, 2022) (further internal quotation omitted))).
Accordingly, it logically follows that Defendants’ reliance on a provision of Rule 26(b)(1)
prior to its amendment in 2015 does not lead to the conclusion that Defendants have
not challenged the relevancy of the records requested by Plaintiffs’ Request No. 3, thus
requiring Plaintiffs to establish the records sought by Plaintiffs’ Request No. 3 are
relevant to Plaintiffs’ claims. Plaintiffs have therefore failed to establish Plaintiffs’
Request No. 3 requests relevant information as is Plaintiffs’ burden. See Lightsquared
Inc., 2015 WL 8675377, at *5. Accordingly, Plaintiffs’ failure to rebut Defendants’
relevance objection requires that Plaintiffs’ motion be DENIED with respect to Plaintiffs’
Request No. 3 of Plaintiffs’ First Set of Document Requests. Accordingly, Defendants
shall serve within 30 days of this Decision and Order all documents responsive to
Plaintiff’s First Set of Document Requests, except for Plaintiffs’ Request No. 3, in
accordance with Rule 34(b)(2)(E)(i) and the foregoing discussion.

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Plaintiffs’ Second, Third and Fourth Set of Document Requests.
Plaintiffs’ Second Set of Document Requests include four requests for decisions

by the Board regarding Plaintiffs (Request No. 1), concerning unlicensed contractors
that contracted with the owner of 845 Richmond Avenue before January 1, 2020
(Request No. 2), for any roof inspections performed by the City at that address before
November 1, 2019 (Request No. 3), and all documents listing all contractors which had
their City licenses revoked or suspended during 2019 and 2020 (Request No. 4) See
(Dkt. 27-4) at 5-6. With respect to Plaintiffs’ first three requests, Defendants responded
by referring Plaintiffs to Defendants’ earlier responses, e.g., Defendants’ Response to
Request No. 1 (“Defendants are aware of [ ] previously provided documents”) (Dkt. 275) at 4-5, presumably the 47 pages of PDF files, the audio file, screenshots and the 107
pages of documents provided by Defendants in Quinn Declaration Exh. E (Dkt. 31-5);
with respect to Request No. 4, Defendants state Defendants are not in possession of
such a “list” of other contractors sanctioned by the Board. Defendants’ Responses to
Plaintiffs’ Second Set of Requests for Production (Dkt. 27-5) at 5.
Plaintiffs’ Third Set of Document Requests, (Dkt. 27-7) at 72, propounded 20
requests for requested documents pertaining, inter alia, to records of New York State
Code changes allowing for only two layers of roofing, correspondence and records
relating to appointments to the Board, the identity of Board members serving between
2019 and 2021, documents regarding any complaints against Plaintiffs, the Defendants’
file on 845 Richmond Avenue as of October 28, 2020, audio recordings of the Board’s
hearings with respect to the complaint against Plaintiffs concerning 845 Richmond
Avenue including a Board hearing at which the Board requested Ms. Alessandra to

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obtain three estimates for repairing the roof at 845 Richmond Avenue, and all records
concerning the suspension and restoration of Plaintiffs’ licenses. See (Dkt. 27-7) at 7577 ¶¶ 1, 2, 6, 10, 13, 15, 18, 19.
In response to Requests Nos. 1 and 2, Defendants informed Plaintiffs that
Defendants were “aware” of the New York State Property Maintenance Code, the
International Maintenance Code, and the City of Buffalo Charter and Code, “[w]hich may
be responsive to these demands,” see (Dkt. 27-7) at 83-84, but Defendants did not
serve copies of such documents. See (Dkt. 31-5) (passim). In response to Requests
Nos. 3, 4, 5, 9, 14, and 16, Defendants stated that Defendants are “not aware” of any
responsive documents. See (Dkt. 27-7) at 85-86, 88. Such responses are deficient
under Rule 34(a)(1) as they fail to indicate whether Defendants’ responses are based
on a reasonable search for any responsive documents in Defendants’ possession or
control. See Finkelstein v. Bical, 2023 WL 9119575, at *2 (E.D.N.Y. Dec. 14, 2023)
(that the requested party is required by Rule 34(a)(1) to conduct a reasonable search
for all responsive documents renders party’s assertion that it is “not aware” of
responsive documents a “patently frivolous basis” for responding to a Rule 34 document
request); see also Howard v. City of Rochester, __ F.Supp.3d __; 2024 WL 4884216, at
*3 n. 4 (W.D.N.Y. Nov. 25, 2024) (defendant’s “cursory” responses pertaining to
defendant’s efforts to obtain documents responsive to plaintiff’s requests for production
were unacceptable). In Defendants’ responses to Plaintiffs’ other requests, i.e., Nos. 68, 10-13, 15, 17, 18-20, Defendants stated Plaintiffs are referred to Defendants’ prior
document responses, presumably the documents provided in PDF and those produced
in Quinn Declaration Exh. E. See (Dkt. 27-7) at 84-90. Such responses are deficient

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for the same reasons discussed above in relation to Plaintiffs’ First Set of Document
Requests. See, supra, at 8-9. Accordingly, Defendants shall within 30 days of this
Decision and Order serve Plaintiffs with responses to Plaintiffs’ Second and Third
Document Requests specifically identifying to which of Plaintiffs’ requests the
documents produced by Defendants are responsive.
In Plaintiffs’ Fourth Set of Document Requests, (Dkt. 27-8) at 5-6, Plaintiffs
requested all recordings and records regarding the reasons and decision-making
process for any discipline of Plaintiffs’ work at 845 Richmond Avenue, all recordings and
records relating to the Board’s vote on whether to send three estimates of the cost for
remedial work on the roof at the residence, documents and records pertaining to
Inspector White’s apprenticeship program, any “Infor records,” an undefined term,
relating to inspections at the residence, and any handwritten notes by Inspector White
during her inspections at 845 Richmond Avenue. As noted, supra, at 5, the record does
not include Defendants’ responses to Plaintiffs’ Fourth Set of Document Requests. The
court is therefore unable to address whether Defendants’ responses to Plaintiffs’ Fourth
Set of Document Requests are deficient as Plaintiffs contend. 15
Additionally, the court finds no merit to Defendants’ argument that all responsive
documents have been produced based on Defendants’ assertion that depositions of
Defendants and Defendants’ witnesses have been conducted by Plaintiffs. See Quinn
Declaration ¶¶ 11, 12-21 (referencing depositions of each Defendant and four nonparties). Depositions pursuant to Rule 30(a) are not the equivalent of Rule 34
document requests and Plaintiffs do not waive Plaintiffs’ right to pursue Rule 34(a)(1)
Plaintiffs may, within 20 days, file an additional motion directed to Defendants Responses to Plaintiffs’
Fourth Set of Document Requests which shall be included in such motion.
15

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requests by engaging in deposition practice. See Fed.R.Civ.P. 26(d)(3) (parties may
engage in any sequence in the use of methods of discovery unless otherwise directed
by stipulation or court order); see also Orens v. Amherst Police Dep't, 2023 WL
7210347, at *1 (W.D.N.Y. Nov. 2, 2023) (“absent a stipulation or court order to the
contrary, methods of discovery may be used by any party in any sequence” (citing
Fed.R.Civ.P. 26(d)(3)); Arroyo v. City of Buffalo, 2018 WL 5262462, at *2 (W.D.N.Y.
Oct. 23, 2018) (ordering the defendants to disclose documents the plaintiff requested
because a review of the defendants’ deposition testimony indicated plaintiff “was unable
to elicit any testimony which could serve as an evidentiary substitute . . . for the relevant
information contained in the documents”). Here, while asserting Plaintiffs conducted
depositions of Defendants and four non-parties, see Quinn Declaration ¶¶ 12-21,
Defendants do not provide any basis to find that the deposition testimony of Defendants
and the non-parties serves as an evidentiary substitute for relevant information
contained in the requested documents at issue. Arroyo, 2018 WL 5262462, at *2.
Accordingly, Defendants shall, within 30 days of this Decision and Order, following a
further search of all available records for any documents requested by Plaintiffs’ First,
Second, and Third Document Requests, provide an affidavit by a person or persons
who conducted such searches, describing in reasonable detail how such search or
searches were conducted and the locations of all potential responsive documents
searched. See Jones v. Cattaraugus-Little Valley Cent. Sch. Dist., 2022 WL 109352, at
*2 (W.D.N.Y. Jan. 12, 2022) (“If Plaintiff's response asserts Plaintiff does not have
possession, custody, or control of responsive documents, Plaintiff's response shall also
include an affidavit describing, with reasonable particularity, all locations of potentially

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responsive documents in fact searched by Plaintiff.”) (citing Wilson v. Town of
Cheektowaga, 2021 WL 195348, at *3 (W.D.N.Y. Jan. 20, 2021) (under Rule 34(a), a
requested party must engage in a reasonably diligent search for all responsive
documents); and In re Terrorist Attacks on September 11, 2001, 2018 WL 3387494, at *
6 (S.D.N.Y. July 11, 2018) (court has discretion to require that responding party
describe party's search efforts for responsive documents)). Such affidavit or affidavits
shall also state as a fact whether all responsive documents located have been
produced. See Lutes v. Kawasaki Motors Corp., USA, 2014 WL 7185469, at *1
(D.Conn. Dec. 16, 2014) (requiring a statement attesting as a factual matter that all
responsive documents have been produced) (citing Napolitano v. Synthes USA, LLC,
297 F.R.D. 194, 200 (D. Conn 2014) and Rayman v. Am. Charter Fed. Savings & Loan
Ass'n, 148 F.R.D. 647, 651 (D.Neb.1993) (citing Fed.R.Civ.P. 34 advisory committee’s
note to 1970 amendment).
3.

Audio Recordings.
As to Plaintiffs initial request for audio recordings, Plaintiffs’ Second Set of

Document Requests requests all documents and audio recordings of Board “decisions
regarding” Plaintiffs. (Dkt. 27-4) at 5 (Request No. 1). In Plaintiffs’ Third Set of
Document Requests, Plaintiffs requested any recordings regarding Plaintiffs’ work at an
unrelated local residence (Dkt. 27-6) at ¶ 9 (“Request No. 9”), the selection of Robert
Kendall as the City Building Inspector assigned to inspect Plaintiff’s work at 845
Richmond Avenue, id. ¶ 11 (“Request No. 11”), any recordings of Board meetings prior
to the October 28, 2020 Board meeting alleged in the Complaint, id. at ¶ 13 (“Request
No. 13”), the Board’s decision to change Board notices to licensed contractors from

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“will” to “may” suspend a contractor’s license, id. ¶ 14 (“Request No. 14”), all Board
meetings at which the Board voted on Ms. Alessandra’s complaint, id., ¶ 15 (“Request
No. 15”), the Board meeting at which the Board discussed complaints where the
owner’s refusal to allow the contractor back on the property caused the Board to
request the owner to provide three estimates for remedial work, id. ¶ 17 (“Request No.
17”), the Board meeting at which the Board determined to request Ms. Alessandra
obtain three estimates for remedial work at 845 Richmond Avenue rather than require
Plaintiffs to reimburse Ms. Alessandra for Plaintiffs’ work, id. at ¶ 18 (“Request No. 18”),
the Board hearing regarding restoration of Plaintiffs’ licenses, id. ¶ 19 (“Request No.
19”), the Board hearing at which the Board discussed that if Ms. Alessandra failed to
provide three estimates, the case would become a “legal matter.” Id. ¶ 20.
In response to Plaintiffs’ Second Document Request No. 1, Defendants state that
Defendants were “aware of” responsive materials which Defendants had previously
provided to Plaintiffs, presumably a copy of an audio recording of the October 22, 2020
Board meeting which Defendants provided to Plaintiffs in response to Plaintiffs’ First Set
of Document Requests. See (Dkt. 27-7) at 68. In response to Plaintiffs’ Third
Document Requests Nos. 9 and 14, Defendants stated Defendants “were not aware of
any responsive documents.” See (Dkt. 27-7) at 86, 87-88. In response to Plaintiffs’
Third Document Requests Nos. 11, 13, 15, 17 and 18-20, Defendants stated
Defendants “were aware of the materials previously produced” to Plaintiffs, presumably
a copy of an audio recording of the October 22, 2020 Board meeting. See (Dkt. 27-7) at
87-90. 16
Although Plaintiffs’ list of unsatisfied requests includes audio recordings of the Board meeting at which
the Board reviewed the Inspection Report of 845 Richmond Avenue made by Inspector Kendall, see
16

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Plaintiffs contend that Zafuto’s deposition supports Plaintiffs’ assertion that
additional recordings of the seven Board meetings requested by in Plaintiffs’ Third
Document Request are likely to exist but that Defendants have failed to conduct an
adequate search for such recordings. Plaintiffs’ Memorandum of Law at 3-4, 9 (quoting
Zafuto’s Deposition Testimony) (Dkt. 27-11) at 1-26); see also Plaintiffs’ Summary of
Zafuto’s Deposition Testimony (Dkt. 27-10) at 1-2. In Defendants’ response,
Defendants maintain Defendants have diligently searched for any such additional
recordings and none have been located. Quinn Declaration (Dkt. 31) ¶¶ 25, 29-30. In
this regard, Quinn specifically avers that as a result of personally consulting with
“appropriate record keepers,” he ascertained that no other recordings of any Board
meeting or action relating to Plaintiffs exist. (Dkt. 31) ¶ 31. In response, Plaintiffs rely
on Zafuto’s deposition testimony in which Zafuto stated his belief that such additional
recordings should exist, Plaintiffs’ Reply Memorandum of Law at 4, and that Defendants
failed to utilize Defendants’ HANSEN (Infor) Records System. Id. at 5.
Based on these circumstances, given the potential evidentiary value of such
putative recordings to Plaintiffs’ case, the court, in its discretion, see United States v.
Sanders, 211 F.3d 711, 720 (2d Cir. 2000) (motions to compel are “entrusted to the
sound discretion of the district court”), cert. denied, 531 U.S. 1015 (2000), directs
Defendants provide Plaintiffs with an affidavit, within 30 days of this Decision and
Order, by the “appropriate record keepers” as specifically mentioned in Quinn’s
Declaration, see Quinn Declaration ¶ 31, attesting to what records were searched by
each record keeper in support of Quinn’s averment that no additional audio recordings
Plaintiffs’ Memorandum of Law at 3, 9, based on the court’s perusal of the requests, no such request was
included in any of Plaintiffs’ document requests.

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responsive to Plaintiffs’ requests, as stated in Plaintiffs’ Second and Third Document
Requests as discussed above, exist. See Miller v. Midpoint Resolution Grp., LLC, 2009
WL 2001329, at *2 (E.D.N.Y. July 7, 2009) (requiring affidavit of person with first-hand
knowledge of the relevant circumstances regarding the existence or non-existence of
requested audio recording explaining that the tape never existed, the tape existed at
one point but no longer exists and the circumstances surrounding its putative loss or
destruction). In this connection, the court notes Plaintiffs assert that Defendants failed
to search several potential sources of responsive documents including audio
recordings. See Plaintiffs’ Memorandum of Law at 10. Plaintiffs particularly contend
Defendants’ “HANSEN system” would be such a productive source for such documents
and recordings. See Plaintiffs’ Third Set of Document Requests ¶ 10. However, as no
description of such HANSEN system is provided in the record, the court does not further
address Plaintiffs’ contention in this regard.
Plaintiffs also assert that in support of Plaintiffs’ “equal protection claims,”
Plaintiffs requested “records of other contractor license suspensions in 2019-2020,
documents showing how other contractor complaints were handled, records showing
whether other contractors were required to obtain three estimates, [and] documentation
of other cases where contractors were publicly criticized by the board.” See Plaintiffs’
Memorandum of Law at 14 (“Plaintiffs’ Equal Protection Claims Request”). Defendants
responded to Plaintiffs’ assertions by arguing that Plaintiffs’ Equal Protection Claims
Request were not discussed at the November 1, 2024 meet and confer meeting, as
required by Rule 37(a)(1), and therefore is not before the court on Plaintiffs’ motion.
See Quinn Declaration ¶ 42. Several factors require Plaintiffs’ Equal Protection Claims

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Request be denied. First, a plain review of Plaintiffs’ motion reveals that none of
Plaintiffs’ document requests include any request for documents pertaining to any of the
four categories of document requests presented in Plaintiffs’ Memorandum of Law. See
Plaintiffs’ First Set of Document Requests (Dkt. 27-1) at 4-7; Plaintiffs’ Second Set of
Document Requests (Dkt. 27-4) at 5-6; Plaintiffs’ Third Set of Document Requests (Dkt.
27-6) at 5-7; Plaintiffs’ Fourth Set of Document Requests (Dkt. 27-8) at 5-6. Although
Plaintiffs’ Second Document Request No. 4, (see Dkt. 27-4) at 6, requested Defendants
provide “all documents that list all contractors” who were subject to a license
suspension or revocation in 2019 and 2020, such request does not include any
reference to Plaintiffs’ Equal Protection Claims Request as stated in Plaintiffs’
Memorandum of Law. See supra. In Defendants’ Response to Plaintiffs’ Request No. 4,
Defendants stated Defendants were not in possession of such a “list”. See (Dkt. 27-5)
at 5. As such, none of the four requests stated in Plaintiffs’ Equal Protection Claims
Request can be considered on Plaintiffs’ motion. See Santiago v. City of New York,
2024 WL 4354878, at *9 (S.D.N.Y. Sept. 28, 2024) (court will not consider party’s
assertion of a new claim in party’s memorandum of law). Second, a careful perusal of
Plaintiffs’ Reply (passim), fails to indicate any rebuttal to Defendants’ contention in
opposition to this request based on Plaintiffs’ failure to discuss the issue at a Rule
37(a)(1) meet and confer, as Defendants maintain, thus conceding that such issue was
not discussed at the November 1, 2024 meet and confer and Plaintiffs do not contend
any discussion of the issue would have been futile. Third, Plaintiffs’ assertion in
Plaintiffs’ Reply that such requests were effected “over a year ago,” see Plaintiffs’ Reply
at 4 (referencing Dkt. 31-2 at 18-19), also does not support Plaintiffs’ inclusion of the

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four document requests concerning Plaintiff’s Equal Protection Claims Request in
Plaintiffs’ Memorandum of Law. Specifically, Dkt. 31-2 at 18-19 consists of
interrogatories Nos. 16 and 17, served as part of Plaintiffs’ First Set of Interrogatories,
which request Defendants identify the number of contractor licenses revoked or
suspended by the Board in 2019-2020. It is basic that an interrogatory pursuant to Rule
33 cannot request documents subject to a Rule 34(a) request. See American S.S.
Owners Mut. Protection and Indem. Ass’n, Inc. v. Alcoa S.S. Co., Inc., 2006 WL
278131, at *3 (S.D.N.Y. Feb. 2, 2006) (use of interrogatories cannot substitute for Rule
34(a) document demands). Therefore, neither Interrogatory requests any documents
such as those Plaintiffs now request in support of Plaintiffs’ Equal Protection Claims
request in Plaintiffs’ Memorandum of Law nor could they. Accordingly, based on the
foregoing analysis with regard to these improper document requests, Plaintiffs’ motion is
DENIED.
(4)

Plaintiffs’ First Set of Interrogatories.
Plaintiffs contend that Defendants have failed to properly answer and provide

proper verified answers to Plaintiffs’ First Set of Interrogatories. Plaintiffs’ Memorandum
of Law at 6-7. Specifically, Plaintiffs argue that instead of providing fully responsive
statements in declaratory sentences, Defendants make repeated references to
previously produced documents. Id. at 7 (citing Mills v. Steuben Foods, Inc., 2023 WL
179579, at *2 (W.D.N.Y. Jan. 13, 2023) (improper to answer interrogatory by reference
to documents produced without particularizing which document provided an answer to
the interrogatory is an insufficient response under Fed.R.Civ.P. 33(b)(3)); Richard v.
Digean, 332 F.R.D. 450, 459 (W.D.N.Y. 2019) (“In order to ensure that each is

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answered ‘separately’ and ‘fully,’ the responding party is required to make an inquiry
and obtain information to answer the interrogatories which would include obtaining the
information to fully and completely answer the interrogatories.” (internal citations and
quotation marks omitted) (underlining added)). The only document production provided
by Defendants in response to Plaintiffs’ First Set of Interrogatories is that referenced in
Quinn Declaration Exh. E consisting of 107 pages of undifferentiated documents. See
Quinn Declaration ¶ 8. As such, Defendants’ answers to Plaintiffs’ First Set of
Interrogatories are insufficient. See Mills, 2023 WL 179579, at *2. Plaintiffs further
contend that Defendants have, to date, failed to provide verified answers to Plaintiffs’
interrogatories as required by Rule 33(b)(3) (each interrogatory to the extent not
objected to is required to be answered separately and fully under oath). Here,
Defendants’ general objections to Plaintiffs’ First Set of Interrogatories are based on
assertions of non-specific objections of vagueness, undue burdensomeness and
overbreadth, see (Dkt. 27-7) ¶ 4, and, as such, are insufficient. See Compagnie
Francaise d'Assurance Pour le Commerce Exterieur v. Phillips Petroleum Co., 105
F.R.D. 16, 42 (S.D.N.Y.1984) (“Defendant cannot evade its discovery responsibilities by
‘simply inton[ing] this familiar litany’ that the interrogatories are burdensome, oppressive
or overly broad.” (quoting Roseberg v. Johns-Manville Corp., 85 F.R.D. 292, 296
(E.D.Pa. 1980)) (bracketed material in Compagnie Francaise d'Assurance Pour le
Commerce Exterieur)). As such, Defendants’ objections to Plaintiffs’ interrogatories are
OVERRULED. Furthermore, “[a]nswers to interrogatories that incorporate other
documents by reference are strongly disfavored.” Matalavage, 2023 WL 2043865, at *8
(citing Trueman v. New York State Canal Corp., 2010 WL 681341, *3 (N.D.N.Y. Feb.

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24, 2010). Rather, as required by Rule 33(b)(1)(A) and (3), interrogatories must be
specifically answered in a form that may be used at trial by the party to whom they are
directed and signed by the party under oath. See Matalavage, 2023 WL 2043865, at *8
(citing In re Savitt/Adler Litig., 176 F.R.D. 44, 49-50 (N.D.N.Y. 1997)). The court also
notes Defendants object to Plaintiffs’ inclusion of the inadequacy of Defendants’
answers to Plaintiffs’ First Set of Interrogatories asserting this issue was not discussed
at the November 1, 2024 meet and confer and therefore under Rule 37(a)(1) is not
properly before the court. See Quinn Declaration ¶ 50. However, according to the
record, this issue was raised with Defendants in Plaintiffs’ September 18, 2024
Deficiency Letter, see (Dkt. 27-7) at 2. As well, Plaintiffs correctly contend that Plaintiffs
requested proper Interrogatory answers from Defendants for “months.” See Plaintiffs’
Reply (Dkt. 35) at 3. As such, the court finds Plaintiffs have substantially complied with
Rule 37(a)(1) with respect to this issue. And Defendants’ objection of this ground is
therefore OVERRULED. See Ergas v. Eastpoint Recovery Grp., Inc., 2021 WL
1711321, at *6 (W.D.N.Y. Apr. 30, 2021) (finding the defendant’s efforts, “while
somewhat abbreviated nevertheless substantially complied with the prerequisites to
motions to compel in accordance with Rule 37(a)(1)”) (citing Apex Oil Co. v. Belcher Co.
of New York, Inc., 855 F.2d 1009, 1019-20 (2d Cir. 1988) (court has discretion
determine whether Rule 37(a)(1)’s meet and confer requirement has been complied
with))); see also United States v. Acquest Transit LLC, 319 F.R.D. 83, 89 (W.D.N.Y.
2017) (declining to dismiss the defendant’s motion to compel where the defendants
argued that prior to filing the motion, the defendants substantially complied with Rule
37(a)(1)’s meet and confer requirement). Accordingly, Defendants shall, within 30 days

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of this Decision and Order, serve Plaintiffs with verified amended answers to Plaintiffs’
First Set of Interrogatories in full compliance with Rule 33(b)(1)(A) and (3) consistent
with the above discussion.
CONCLUSION
Based on the foregoing, Plaintiffs’ motion (Dkt. 27) is GRANTED in part and
DENIED in part as to Plaintiffs’ First Document Request, Plaintiffs’ Request No. 3, and
Plaintiffs’ requests, as stated in Plaintiffs’ Memorandum, directed to Plaintiffs’ Equal
Protection Claims Request. As required by Fed.R.Civ.P. 37(a)(5)(A), Defendants shall,
within 20 days of this Decision and Order, show cause why Plaintiffs’ expenses incurred
in connection with Plaintiffs’ motion, including reasonable attorneys fees, should not be
awarded to Plaintiffs; Plaintiffs’ response shall be filed within 10 days thereafter;
Defendants’ reply, if any, shall be filed within 5 days. Plaintiffs shall show cause, within
20 days, as required by Fed.R.Civ.P. 37(a)(5)(B), why Defendants expenses, including
reasonable attorneys fees, incurred in successfully opposing Plaintiffs’ motion with
respect to Plaintiffs’ Request No. 3, and Plaintiffs’ Equal Protection Claims Request
document requests should not be award to Defendants; Defendants’ response shall be
served within 10 days thereafter; Plaintiffs’ reply, if any, shall be filed within 5 days.
Oral argument shall be at the court’s discretion.
SO ORDERED.

/s/ Leslie G. Foschio
_________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE

Dated: March 6, 2025
Buffalo, New York

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