Facts
- Don Gregory Chiarella sustained personal injuries while working on the construction of the Governor Mario M. Cuomo Bridge owned by the New York State Thruway Authority [lines="24-24"].
- During his accident, Chiarella was using a wooden pallet to descend between walkway levels when the pallet shifted, leading to his fall [lines="25-27"].
- Chiarella filed a claim alleging violations of Labor Law §§ 240(1) and 241(6) due to unsafe working conditions [lines="28"].
- Chiarella sought summary judgment on the issue of liability for the Labor Law violations, while the defendant cross-moved for summary judgment to dismiss the claim [lines="29"].
- The Court of Claims denied Chiarella's motion for summary judgment on certain Labor Law violations but granted the defendant's cross-motion on other violations [lines="30"].
Issues
- Whether the Court of Claims erred in denying Chiarella's summary judgment motion regarding the violation of Labor Law § 240(1) [lines="40"].
- Whether the Court of Claims erred in denying summary judgment for Chiarella's claims under Labor Law § 241(6) based on specific Industrial Code violations [lines="47"].
Holdings
- The appellate court held that the Court of Claims should have granted Chiarella's motion for summary judgment on the issue of liability under Labor Law § 240(1), concluding he made a prima facie showing of the defendant's liability [lines="40"].
- The court found that Chiarella also established a prima facie case for violations of Labor Law § 241(6) related to safety measures, which the Court of Claims should have acknowledged [lines="47"].
OPINION
MARTIN GUGINO v. CITY OF BUFFALO, MAYOR BYRON BROWN, ROBERT McCABE, AARON TORGALSKI, JOHN LOSI, BYRON C. LOCKWOOD, DEPUTY POLICE COMMISSIONER JOSEPH GRAMAGLIA
21-CV-283-LJV-LGF
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
May 30, 2024
Case 1:21-cv-00283-LJV-LGF Document 112
APPEARANCES: LIPSITZ GREEN SCIME CAMBRIA LLP
Attorneys for Plaintiff
RICHARD P. WEISBECK, JR.,
MELISSA D. WISCHERATH, and
ROBERT MacWILLIAMS CORP, of Counsel
42 Delaware Avenue, Suite 120
Buffalo, New York 14202
HODGSON RUSS LLP
Attorneys for Defendants
KARALYN ROSSI,
HUGH M. RUSS,
PETER A. SAHASRABUDHE, of Counsel
The Guaranty Building
140 Pearl Street, Suite 100
Buffalo, New York 14202
RICHARD G. COLLINS, ESQ.
Attorney for non-party witness Jeffrey M. Selchick, Esq.
4185 Seneca Street, Suite 7
West Seneca, New York 14224
This action was referred to the undersigned by Hon. Lawrence J. Vilardo on March 22, 2021 (Dkt. 6), for non-dispositive pretrial motions. The matter is presently before the court on Defendants’ motion filed December 7, 2023, for a protective order (Dkt. 79), Plaintiff‘s motion filed December 18, 2023, to compel a further deposition (Dkt. 81), nonparty Jeffrey M. Selchick‘s motion filed December 21, 2023, to quash his deposition subpoena (Dkt. 82), Plaintiff‘s motions filed January 12, 2024 for sanctions and to compel discovery by non-party John Evans (Dkt. 92), and for expedited relief regarding such motion (Dkt. 93), and Plaintiff‘s cross-motion filed January 17, 2024, to compel non-party Jeffrey M. Selchick‘s deposition (Dkt. 98).
BACKGROUND and FACTS1
In this civil rights action commenced on February 22, 2021, Plaintiff Martin Gugino (“Plaintiff” or “Gugino“), alleges Defendants, including the City of Buffalo (“the City“), Mayor Byron Brown (“Mayor Brown“), Buffalo Police Department (“Buffalo Police“) Officers Robert McCabe (“McCabe“), Aaron Torgalski (“Torgalski“), and John Losi (“Losi“) (together, “Defendant Police Officers“), Buffalo Police Commissioner Byron C. Lockwood (“Lockwood“), and then Deputy Buffalo Police Commissioner Joseph Gramaglia (“Gramaglia“) (together, “Defendants“), violated Plaintiff‘s constitutional rights to freedom of speech, peaceful assembly, petition the government for redress of grievances, and “movement,” and freedom from unreasonable seizures and unlawful use of force by governmental agents, and due process of law. Complaint ¶ 1. Plaintiff
On November 1, 2 and 3, 2021, one Jeffrey M. Selchick, Esq. (“Selchick“), presided over an arbitration hearing involving disciplinary proceedings brought by the City and the Buffalo Police against McCabe and Torgalski regarding the incident. On April 8, 2022, Selchick issued an Opinion and Award (“arbitration decision“) resolving the disciplinary charges against McCabe and Torgalski. Although the arbitration decision, on which Selchick has never publicly commented, was released only to the parties to the disciplinary proceedings, the full contents of the arbitration decision were included in an April 8, 2022 article published in the Buffalo News.
On December 7, 2023, Defendants filed a motion for a protective order (Dkt. 79) (“Defendants’ Motion for a Protective Order“), seeking a court order declaring Plaintiff‘s deposition of Gramaglia is complete. The motion is supported by the attached Declaration [of Peter A. Sahasrabudhe, Esq.]2 in Support of Defendants’ Motion for
On December 21, 2023, non-party arbitrator Selchick filed a motion to quash a subpoena served by Plaintiff for Selchick‘s deposition (“Motion to Quash“) (Dkt. 82), supported by the Declaration [of Richard G. Collins, Esq.] in Support of Motion to Quash Plaintiff‘s Subpoena to Testify at a Deposition in a Civil Action Served on Arbitrator Jeffrey M. Selchick (Dkt. 82) (“First Collins Declaration“), attaching exhibits A through E (Dkts. 82-1 through 82-5) (“Collins‘s Exh(s). __“), the Declaration [of Selchick] in Support of Motion to Quash Plaintiff‘s Subpoena to Testify at a Deposition in a Civil Action Served on Arbitrator Jeffrey M. Selchick (Dkt. 82-6) (“Selchick Declaration“), attaching exhibits A and B (Dkts. 82-7 and 82-8) (“Selchick Declaration Exh(s). __“), and the Memorandum of Law in Support of Motion to Quash Plaintiff‘s Subpoena to Testify at a Deposition in a Civil Action Served on Arbitrator Jeffrey M. Selchick (Dkt. 82-9) (“Selchick‘s Memorandum“).
On January 12, 2024, Plaintiff filed a motion to compel non-party witness John Evans (“Evans“) to answer all questions posed to him at his deposition by Plaintiff, and ordering Evans‘s attorney, Rodney Personius (“Personius“) to refrain from speaking objections and deposition obstruction, as well as sanctions (Dkt. 92) (“Plaintiff‘s Motion to Compel“). Plaintiff‘s Motion to Compel is supported by the attached Memorandum of Law in Support of Motion to Compel (Dkt. 92-1) (“Plaintiff‘s Memorandum - Motion to Compel“), and the Declaration of Melissa D. Wischerath, Esq. (Dkt. 92-2) (“Second Wischerath Declaration“), with exhibits B3 through E (Dkts. 92-3 through 92-6) (“Plaintiff‘s Second Exh(s). __“). Plaintiff also filed on January 12, 2024, a motion seeking expedited relief on Plaintiff‘s Second Motion to Compel, pursuant to Local Rules of Civil Procedure - W.D.N.Y. Rule 7(d) (Dkt. 93) (“Plaintiff‘s Motion to Expedite“), attaching the Memorandum of Law in Support of Expedited Relief of Motion to Compel Pursuant to L.R.Civ.P. 7(d) (Dkt. 93-1) (“Plaintiff‘s Memorandum Supporting Motion to Expedite“), and the Declaration [of Melissa D. Wischerath, Esq.] in Support of Motion to Expedite (Dkt. 93-3) (“Third Wischerath Declaration“).
On January 24, 2024, Plaintiff filed the Reply Memorandum of Law by Plaintiff in Further Support of His Cross-Motion and in Opposition to Defendant Gramaglia‘s Motion for a Protective Order (Dkt. 100) (“Plaintiff‘s Reply and Sur-Reply“), attaching the Declaration of Richard P. Weisbeck, Jr., Esq. (Dkt. 100-1) (“Second Weisbeck Declaration“), with exhibits (Dkts. 100-2 through 100-7) (“Second Weisbeck Declaration Exh(s). __“).
On January 26, 2024, non-party Evans filed the Response Declaration of Counsel [Rodney Personius, Esq.] (Non-Party Witness J. Evans) (Dkt. 101) (“Personius Response Declaration“), attaching a volume of exhibits A through H (Dkt. 101-1) (“Personius Response Exh(s). __“), and Non-Party Witness J. Evans’ Memorandum of Law (Dkt. 102) (“Evans‘s Response“). On January 31, 2024, Plaintiff filed the Reply
In a letter dated March 22, 2024, Wischerath provided the court with an additional page of a “Triage Agreement” originally filed as Dkt. 99-3 (“Police Discipline Triage Agreement“). See Wischerath Letter (Dkt. 108), attaching inter alia, the missing page (Dkt. 108-2) (“Additional Triage Agreement Page“). On March 25, 2024, Selchick filed the Declaration of Richard G. Collins, Esq. in Response to Plaintiff‘s Letter Motion (Dkt. 109) (“Second Collins Declaration“), clarifying that the document attached to the Wischerath Letter consists solely of an additional page of the Police Discipline Triage Agreement that was missing from what was originally provided to Plaintiff.
Oral argument was deemed unnecessary.
Based on the following, Defendants’ Motion for Protective Order is DENIED; Plaintiff‘s Cross-Motion to Compel is GRANTED in part and DENIED in part; Selchick‘s Motion to Quash is GRANTED; Plaintiff‘s Second Cross-Motion to Compel is DENIED; Plaintiff‘s Motion to Compel is GRANTED; and Plaintiff‘s Motion to Expedite is DISMISSED as moot.
DISCUSSION
1. Defendants’ Motion for Protective Order and Plaintiff‘s Cross-Motion to Compel
Defendants’ Motion and Plaintiff‘s Cross-Motion to Compel pertain to Plaintiff‘s deposition of Defendant Joseph Gramaglia, Commissioner of the Buffalo Police
On November 9, 2023, Gramaglia appeared for the second deposition session conducted by Weisbeck, and defended by defense counsel Peter A. Sahasrabudhe, Esq, (“Sahasrabudhe“) (“second deposition session“).6 The second deposition session commenced at 10:04 A.M., Gramaglia‘s Second Dep. Tr. at 262, and ended at 10:49 A.M., when Weisbeck suspended the deposition, stating he would obtain a court order
Defendants then filed the instant motion seeking a court order protecting Gramaglia from being required to appear for a further deposition arguing further deposition is inappropriate based on Gramaglia‘s status as a high-ranking government official and the fact that both the first and second deposition sessions, at which Gramaglia testified for more than five hours, were unilaterally suspended by Weisbeck, Defendants’ Memorandum at 3-5, and that Weisbeck‘s suspension of the second deposition session was in blatant disregard of the undersigned‘s deposition rules. Id. at 5. Defendants further request the court award them costs and fees incurred in connection with the motion. Id. at 6-7.
In his cross-motion to compel, Plaintiff references multiple portions of the transcripts which Plaintiff maintains demonstrates Gramaglia‘s obstructionist behavior in answering various deposition questions, particularly providing answers in narrative form rather than a simple yes or no, Plaintiff‘s Cross-Motion Memorandum at 4-21, and requests the court issue an order compelling Gramaglia to reappear for further deposition and answer direct leading questions “yes” or “no” in accordance with
A. High-Ranking Official
The court first considers Defendants’ argument, Defendant‘s Memorandum at 3-5, that Gramaglia, as Deputy Police Commissioner, is a high-ranking official who
“Depositions of high-ranking government officials are generally not permitted except upon proof that ‘(1) the deposition is necessary in order to obtain relevant information that cannot be obtained from any other source and (2) the deposition would not significantly interfere with the ability of the official to perform his governmental duties.“’ Murray v. County of Suffolk, 212 F.R.D. 108, 109 (E.D.N.Y.2002) (quoting Marisol A. v. Giuliani, 1998 WL 132810, at *2 (S.D.N.Y. May 23, 1998)). “High-ranking government officials are generally shielded from depositions because they have ‘greater duties and time constraints than other witnesses.‘” Lederman v. New York City Dep‘t of Parks & Recreation, 731 F.3d 199, 203 (2d Cir. 2013) (quoting In re United States (Kessler), 985 F.2d 510, 512 (11th Cir.1993)). If courts did not limit these depositions, such officials would spend “an inordinate amount of time tending to pending litigation.” Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir.2007). “To depose a high-ranking government official, a party must demonstrate exceptional circumstances justifying the deposition—for example, that the official has unique first-hand knowledge related to the
Defendants concede that Plaintiff “had a right to take the testimony of Commissioner Gramaglia, as he was personally involved in the operations plan for the police‘s response to protests in the City of Buffalo on the date of the incident giving rise to the plaintiff‘s claims.” Defendants’ Memorandum at 4 (citing Gibson v. Carmody, 1991 WL 161087, at *1 (S.D.N.Y. Aug. 1991) (permitting deposition of New York Police Commissioner who personally participated in the incident or investigation on the incident and subsequent disciplinary proceedings). Nor do Defendants maintain the information Plaintiff seeks could be obtained through means less burdensome or intrusive than deposing Gramaglia. The court thus focuses on whether permitting Plaintiff to further depose Gramaglia would significantly interfere with Gramaglia‘s performance of his official duties as Police Commissioner.
At the time of the incident, Gramaglia was Deputy Police Commissioner of Operations, but in 2022, was promoted to Police Commissioner, Gramaglia First Dep. Tr. at 18, the position Gramaglia held as of the first and second deposition sessions. Regarding Plaintiff‘s assertion that Defendants have not met their burden to establish good cause for a protective order, Plaintiff‘s Cross-Motion Memorandum at 22-23, Defendants argue that Gramaglia, as Police Commissioner, is a high-ranking government official which status alone provides the requisite good cause for the requested protective order. Defendant‘s Response and Reply at 5. Defendants’ argument is at best disingenuous given that Defendants produced Gramaglia for deposition on October 17, 2023, and again on November 9, 2023, well after his
Defendants’ Motion for a protective order should therefore be DENIED on this ground.
B. Sufficiency of Gramaglia‘s Answers and Further Deposition Practice
In opposition to Defendants’ argument that because Gramaglia has already participated in two deposition sessions which Weisbeck unilaterally suspended and should not be required to submit to further deposition, Defendants’ Memorandum at 5-6, Plaintiff, in support of Plaintiff‘s Cross-Motion to compel, references several excerpts of the transcripts of the first and second deposition sessions which Plaintiff maintains
Preliminarily, the court addresses Defendants’ references to excerpts of transcripts from other depositions to demonstrate that at every deposition conducted in connection with this action, Weisbeck is “combative and needlessly hostile.” First
Relative to Plaintiff‘s insistence that Gramaglia should have limited his answers to deposition questions to “yes” or “no,”
Insofar as Defendants and Plaintiff dispute whether Weisbeck was justified in suspending or pausing Gramaglia‘s first and second deposition sessions, the court‘s review of the relevant deposition transcripts establishes Weisbeck‘s conduct with regard to Gramaglia‘s deposition was not flawless. Specifically, a review of the transcripts of the first and second deposition sessions reveals Gramaglia answered numerous questions either “yes” or “no” or gave an equivalent one-word answer. See, e.g., First
Some of the questions Weisbeck posed to Gramaglia could not necessarily be answered with a simple yes or no answer. For example, at the first deposition session, Weisbeck asked Gramaglia, “Do you agree that the unconsented physical intrusion when someone is being subject to the use of force, is a human rights violation?” First Gramaglia Dep. Tr. at 30. Gramaglia responded, “I don‘t agree with that statement. It depends on the circumstances of what that use of force is, what necessitated that use of force.” Id. at 31. Indeed, had Gramaglia simply responded, “yes,” Gramaglia would have conceded that every unconsented use of force by law enforcement officers constitutes a human rights violation, essentially denying law enforcement the right to use force in any situation lest the officers be subject to liability for human rights violations, and potentially leaving others at the risk of physical harm from a physically unrestrained criminal. Alternatively, a negative response by Gramaglia would have
Weisbeck also posed questions that invited narrative, rather than a one-word responses including, “And when you conduct that investigation, what do you do with the results of the investigation?” First Gramaglia Dep. Tr. at 35. After requesting some clarification, Gramaglia‘s response, as expected, consisted of more than one word. Id.
Further, several of Weisbeck‘s questions are not only compound, but can be fairly characterized as “argumentative.” See, e.g., First Gramaglia Dep. Tr. at 77 (“So you obviously, from your life experiences, your academic experiences, have an understanding that certain police officers will use cover charges against citizens when they arrest them for a bad attitude, verbal abuse or other things where there‘s not a justification to arrest that person, and those are called cover charges, isn‘t that true?“); and Second Gramaglia Dep. Tr. at 286 (Weisbeck asking, “What is the reason that the Buffalo Police Department allowed members of the press to exercise their First Amendment rights during the curfew but denied other citizens the ability to exercise their First Amendment rights during the curfew?“).
Significantly, between the commencement of the first deposition session at 10:05 A.M., and its conclusion at 4:24 P.M., there were only four questions to which Weisbeck
The transcript of the second deposition session shows it proceeded in a fairly routine manner for about 45 minutes until the following exchange occurred pertaining to a video that was being shown to Gramaglia:
Weisbeck: In fact, contrary to what you testified earlier, the black male with the white T-shirt was directing his verbal statements to the man in the black hat with the camouflage shirt, isn‘t that true?
Sahasrabudhe: Form.
Gramaglia: Yeah. It‘s been three and a half years so I thought that there was some more directive of the language towards him, but apparently I was mistaken in that, from the video that I‘ve seen so far.
Second Gramaglia Dep. Tr. at 302.
Weisbeck: Can you say yes or no to that?
Gramaglia: I answered the question.
Weisbeck: No. I‘m asking can you answer yes or no?
Sahasrabudhe: Objection to form.
Weisbeck: No, you didn‘t.
Gramaglia: I did.
Weisbeck: Sir, are you able to answer the question yes or no?
Gramaglia: Apparently, not to your satisfaction.
Weisbeck: This is a different question. Are you able to answer that question yes or no?
Gramaglia: I am able to answer the question.
Weisbeck: Yes or no?
Gramaglia: I answered the question.
Sahasrabudhe: I think you got the answer you were looking for, Rick. I mean, he said - -
Weisbeck: Well, I‘m sorry, no. Please. I don‘t. And I‘m entitled to ask him yes or no questions.
Sahasrabudhe: And he is entitled to respond - -
Weisbeck: I‘m sorry. Let me finish - -
Sahasrabudhe: - - to the best of his ability.
Weisbeck: Just like Hugh [Russ] interrupts me all the time, you seem to be doing that as well. I‘m going to stop this deposition.
Sahasrabudhe: Rick.
Weisbeck: I‘m going to ask the Court for an order to compel this witness to answer that question yes or no, unless you want to speak to him, because I‘m entitled to simple yes or no answers.
Sahasrabudhe: So --
Weisbeck: And if you want -- if you don‘t, if you don‘t want to speak to your witness, we‘re going to stop now, and I‘m going to bring a motion.
Sahasrabudhe: He is entitled to answer the question to the best of his ability, which he can. Can you answer that question yes or no?
Gramaglia: It does not appear that he engaged in anything.
Sahasrabudhe: There you go.
Weisbeck: That‘s not the word -- that‘s not what I asked.
Sahasrabudhe: So now you want him to say a specific word?
Weisbeck: Yes or no. Yes or no, that‘s what I want. I‘m entitled to that.
Sahasrabudhe: No, you‘re not, but okay. Can you use the word yes or no to appease Mr. Weisbeck?
Gramaglia: I don‘t know what conversations ensued between --
Weisbeck: That‘s not --
Weisbeck: All right. I‘m going to end this deposition, we‘re going to get a court order.
Sahasrabudhe: For him to say yes or no?
Weisbeck: Yes. Not only to this question, but many other questions. I have put up with this for one full day, and now I‘m into the second day, and I‘m asking straight-forward questions about yes or no, and this witness is decided throughout the entire deposition that he‘s not going to answer yes or no to questions that call for a yes or no answer, so we‘re ending this, and we‘ll get a judge to decide whether he‘s compelled to answer these questions.
Sahasrabudhe: He‘s answered every single question.
Weisbeck: No, he hasn‘t. I ask yes or no questions, and he still keeps going on. We‘re going to get a court order.
Videographer: Going off the record, time is ten-forty-nine.
Second Gramaglia Dep. Tr. at 304-06
Although not answered with a single word response, Gramaglia clearly stated he agreed with Weisbeck‘s description of the video that “the black male with the white T-shirt” depicted in the video was making statements to “the man in the black hat with the camouflage shirt.” Why Weisbeck waited until this question to insist on “yes” or “no” answers to questions is not clear to the court. Further, as Defendants counsel avers, First Sahasrabudhe Declaration ¶ 11, in deposing Gramaglia, Weisbeck‘s questions largely did not directly pertain to the incident involving Gugino but, rather, to Buffalo Police Department‘s general policies and practices as well as training, particularly with regard to encounters with civilians and crowds.
The court also observes that Defendants’ attorneys, including Hugh Russ, Esq. at the First Deposition Session, and Peter Sahasrabudhe, Esq., at the Second Deposition Session, entered a “form” objection to almost every question Weisbeck asked, including more than 250 times during the first deposition session which lasted, with breaks, five hours and 18 minutes, and more than 50 times during the second
Defendants further argue, Defendant‘s Memorandum at 5; Defendants’ Response and Reply at 6, the instant motion practice could have been avoided had Weisbeck, rather than unilaterally suspending the depositions sessions, simply recorded objections on the record regarding any answers Weisbeck considered as not responsive to the posed question, as required by “this Court‘s rules.”8 Id. Although Plaintiff does not directly respond to this argument, Defendant does not reference, and the court‘s research has not revealed, any case law requiring denying Plaintiff‘s Cross-Motion to Compel based on a failure to comply with the undersigned‘s Guidelines for Discovery
C. Continued Deposition
Gramaglia has already submitted to six hours and five minutes of deposition questioning including five hours and 18 minutes for the first deposition session and 45 minutes for the second deposition session for a total of six hours and three minutes of deposition questioning.
Accordingly, insofar as Defendant seeks a protective order against further deposition of Gramaglia, Defendant‘s Motion is also DENIED, and Plaintiff‘s Cross-Motion to Compel further deposition of Gramaglia is GRANTED.
D. Sanctions
Defendants seek an award of costs and feed incurred in connection with Defendants’ Motion. Defendants’ Memorandum at 6-7; Defendants’ Response and Reply at 6. The denial of Defendants’ Motion for a protective order renders moot Defendants’ request for an award of costs and attorney fees incurred in connection with the motion.
Plaintiff also requests pursuant to
Ordinarily the court must grant the party opposing a successful motion to compel an opportunity to be heard prior to deciding whether the moving party should be awarded attorney fees.
In the instant case, the relief sought in Plaintiff‘s Cross-Motion to Compel, i.e., a court order directing Gramaglia‘s further deposition, is in direct contrast to the relief sought in Defendants’ Motion, specifically, a court order protecting Gramaglia from further deposition by Plaintiff. In these circumstances, it is clear that both Defendants’ Motion and Plaintiff‘s Cross-Motion were necessitated by a “genuine dispute” over a legal issue such that Defendants’ opposition to Plaintiff‘s motion was “substantially justified.” Nor have Defendants flouted the Federal Rules of Civil Procedure or this
Based on the circumstances presented in this case, Defendants’ Motion for a protective order is DENIED; Plaintiff‘s Cross-Motion to Compel further deposition of Gramaglia is GRANTED in part and DENIED in part. Gramaglia is ORDERED to submit to an additional deposition session limited to 57 minutes, during which Plaintiff shall be permitted to ask only questions consistent with
As stated above, Background and Facts, supra, at 3, on April 8, 2022, Selchick issued the arbitration decision resolving the disciplinary charges against McCabe and Torgalski, subsequent to which Plaintiff served Selchick with a Subpoena to Produce Documents, Information or Objects dated April 11, 2022,11 (Dkt. 82-3) (“first subpoena“), commanding production of documents generated in connection with the resolution of the disciplinary charges (“the documents“) by May 2, 2022. In a letter dated April 25, 2022, Mr. Collins advised Plaintiff‘s counsel of Selchick‘s objections to the first subpoena (Dkt. 82-5) (“Collins‘s Letter“) and included Selchick‘s objections pursuant to
Selchick moves to quash the second subpoena arguing it seeks testimony and disclosure of material that are privileged, confidential, and protected from disclosure because it pertains to Selchick‘s decision-making and thought processes as an arbitrator and that disclosure would also violate Selchick‘s ethical obligations as an
Plaintiff argues that Selchick is without standing to assert the arbitrator privilege because Selchick was never properly vested with the power and duty to discipline members of the Buffalo Police and that such power lies only with the Police Commissioner, Plaintiff‘s Memorandum – Second Cross-Motion at 2-5, an argument Selchick strongly opposes. Selchick Reply at 4-6. Although not raised by the parties, it is not Selchick who is without standing to challenge Selchick‘s authority as an arbitrator, but Plaintiff, who was not a party to the arbitration proceedings. See Katir v. Columbia Univ., 15 F.3d 23, 24-25 (2d Cir. 1994) (individual who is not a party to an arbitration proceeding is without standing to challenge the proceeding); Clarke v. Board of Education of City School, 185 N.Y.S.3d 8, 10 (1st Dep‘t 2023) (holding petitioners who were not parties to the arbitration proceedings are without standing to challenge the arbitration decision including the arbitrator‘s authority to render the award). Here, because Plaintiff was not a party to the arbitration proceedings, he is without standing to challenge any part of the proceedings including Selchick‘s authority to preside over the arbitration proceedings and issue the arbitration decision.
Regarding the documents requested by Plaintiff in both the first and second subpoenas, initially, there is no merit to Selchick‘s argument, Selchick‘s Reply at 3, that Plaintiff failed to timely move to compel production of the documents requested by the first subpoena, instead waiting more than a year and a half to request the same documents by serving the second subpoena. Rather,
Selchick maintains, and Plaintiff does not dispute, that the only documents in his possession pertain to on-going grievance arbitrations between the City of Buffalo, the Buffalo Police Department, and the Buffalo PBA, Selchick Declaration ¶ 5, and that Selchick‘s “‘disclosure plainly would intrude upon the analytical basis for the arbitrator‘s decision, an area that is generally, and properly, viewed as not subject to inquiry. . . .‘” Selchick‘s Memorandum at 6 (quoting Nat‘l Hockey League Players’ Ass‘n v. Bettman, 1994 WL 38130, at * 7 (S.D.N.Y. Feb. 4, 1994)). Plaintiff, however, maintains the second subpoena is directed toward Selchick‘s potential bias in arbitrating the disciplinary charges against McCabe and Torgalski. Plaintiff‘s Second Memorandum of Law at 5-9.
“[I]n the context of a claim of arbitral bias, the court may insist that the challenging party proffer some evidence of arguable misconduct before permitting discovery, particularly if it is addressed to the arbitrator.” Nat‘l Hockey League Players’ Ass‘n, 1994 WL 38130, at *7 (citing Lyeth v. Chrysler Corp., 929 F.2d at 899 (citing Andros Compania Maritina, SA. v. Marc Rich & Co., A.G., 579 F.2d at 702), and Nasta v. Paramount Pictures Co., 1991 WL 183353 at *4 (S.D.N.Y. Sept. 11, 1991)). In the instant case, not only has Plaintiff provided absolutely no evidence of arguable misconduct by Selchick to justify requiring disclosure of the requested documents, but insofar as Plaintiff seeks the subject documents to establish bias on the part of Selchick
Selchick‘s Motion to quash his deposition should therefore be GRANTED and Plaintiff‘s Second Cross-Motion to Compel the deposition should be DENIED.13
3. Plaintiff‘s Motions to Compel and to Expedite
Plaintiff moves pursuant to
Weischerath: So regarding the firearms training, do you want to see a higher frequency, so that it‘s not just going on once a year, that it be, maybe, what, do you have a number? Do you want it to be like biannual, quarterly?
Evans: Quarterly.
Wischerath: Sorry. Was there just a note handed?
Personius: Yes. You can read it into the record.
Evans: I do not have the authority in my individual capacity to respond to your question.
Wischerath: Did you type that out, Mr. Personius?
Personius: I did.
Evans Dep. Tr.15 at 38.
The note Personius admitted handing Evans is a 3” by 5” index card (“the first index card“) on which was typewritten, “I do not have authority in my individual capacity to respond to your question.” Dkt. 92-1 at 2; Evans Dep. Tr. at 38. Typewritten on a second index card that not passed to Evans by Personius, was “I have no personal knowledge regarding this subject.” Dkt. 92-1 at 3; Evans Dep. Tr. at 51. Personius stated that he intended to hand the notes to Evans whenever Evans was asked a question that Personius considered was outside the scope of Evans‘s personal knowledge and that Evans‘s deposition was limited to questions to be answered by Evans in his individual capacity, rather than seeking Evans‘s opinions, beliefs and concerns as Buffalo PBA president. Evans Dep. Tr. at 38-40. Personius further stated that the index cards would not have been needed if Wischerath had complied with Personius‘s earlier request to identify the subjects Wischerath intended to cover at the deposition. Id. at 41. Evans‘s deposition was suspended less than 90 minutes after it commenced to permit Wischerath to obtain the court‘s guidance. Id. at 48-49.
Preliminarily, Plaintiff‘s Motion to Expedite (Dkt. 93), also filed on January 12, 2024, seeks, pursuant to Local Rule of Civil Procedure to the Western District of New York 7(d), expedited relief on Plaintiff‘s Motion to Compel because the Fifth Amended Scheduling Order then in effect, Dkt. 74), set March 5, 2024 as the deadline for depositions. Given March 5, 2024 has since elapsed, and a Sixth Amended Scheduling Order (Dkt. 111) filed May 17, 2024 sets September 11, 2024 as the cutoff for fact depositions, Plaintiff‘s Motion to Expedite is DISMISSED as moot.
With regard to Plaintiff‘s Motion to Compel,
“‘It is well settled that it is inappropriate for an attorney to influence or coach a witness during a deposition.‘” Ladino v. Cordova, 2023 WL 2915402, at *7 (E.D.N.Y. Apr. 12, 2023) (quoting Musto v. Transp. Workers Union of Am., 2009 WL 116960, at *1 (E.D.N.Y. Jan. 16, 2009) (collecting cases)). Plaintiff cites no caselaw concerning an
Further, as relevant, the undersigned‘s Deposition Guidelines provide,
(4) Counsel shall not make objections or statements which might suggest an answer to a witness. Counsels’ statements when making objections should be succinct and verbally economical, stating the basis of the objection and nothing more.
(5) Counsel and their witness/clients shall not initiate or engage in private off-the-record conferences during depositions or during breaks or recesses, except for the purpose of deciding whether to assert a privilege.
Based on a plain reading of the deposition transcript, it is readily apparent that the provision of an index card bearing a pre-planned response constitutes a statement made by Evans‘s counsel suggesting an answer in violation of deposition guideline 4, and the passing of the index care could be construed as a “private off-the-record conference” between Personius and Evans in violation of deposition guideline 5.
Plaintiff‘s Motion to Compel is GRANTED.
CONCLUSION
Based on the foregoing, Defendants’ Motion for a Protective Order (Dkt. 79) is DENIED; Plaintiff‘s Cross-Motion to Compel (Dkt. 81) is GRANTED in part and DENIED in part; Selchick‘s Motion to Quash (Dkt. 82) is GRANTED; Plaintiff‘s Motion to Compel (Dkt. 92) is GRANTED; Plaintiff‘s Motion to Expedite (Dkt. 93) is DISMISSED as moot; and Plaintiff‘s Second Cross-Motion to Compel (Dkt. 98) is DENIED.
SO ORDERED.
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dates: May 30, 2024
Buffalo, New York