Paul Marinaccio, Sr., Respondent,v.Town of Clarence, Defendant, Kieffer Enterprises, Inc., Appellant.BriefN.Y.February 5, 20130 To be Argued by: MICHAEL B. POWERS, ESQ. Estimated Time for Argument: (20 Minutes) STATE OF NEW YORK Court of Appeals PAUL MARINACCIO, SR., Plaintiff-Respondent, vs. TOWN OF CLARENCE, Defendant, and KIEFFER ENTERPRISES, INC., Defendant-Appellant. Appellate Division Docket Number: CA 10-00292. Erie County Index No.: I-2006-006978. REPLY BRIEF FOR DEFENDANT-APPELLANT KIEFFER ENTERPRISES, INC. PHILLIPS LYTLE LLP MICHAEL B. POWERS, ESQ., Of Counsel PATRICIA A. MANCABELLI, ESQ., Of Counsel Attorneys for Defendant-Appellant Kieffer Enterprises, Inc. 3400 HSBC Center Buffalo, New York 14203 Telephone: (716) 847-8400 Facsimile: (716) 852-6100 Date of Completion: November 29, 2012. BATAVIA LEGAL PRINTING, INC.— Telephone (866) 768-2100 DISCLOSURE STATEMENT Pursuant to 22 NYCRR 500.1(f), defendant-appellant Kieffer Enterprises, Inc. (“Kieffer”) advises the Court that it has no parents, subsidiaries or affiliates. - i - TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... iv RESPONSE TO PLAINTIFF’S JURISDICTIONAL STATEMENT ......................1 A. The Dissent Did Not Apply The Wrong Legal Standard......................1 B. The Dissent Did Not Make New Findings Of Fact...............................3 1. The Town’s Subdivision Regulation Relied Upon By Plaintiff Does Not Apply ............................................................3 2. The Record Is Uncontroverted As To Kieffer’s Lack Of Intent To Interfere With Plaintiff’s Use Of His Land.................4 C. No Question Of Fact Exists As To Plaintiff’s Entitlement To Punitive Damages ................................................................................................6 D. The Dissent Was Not Based On A Mixed Question Of Law And Fact ................................................................................................7 ARGUMENT .............................................................................................................8 POINT I KIEFFER PROPERLY MOVED TO DISMISS THE PUNITIVE DAMAGES CLAIM AND, THEREFORE, PRESERVED ITS RIGHT TO LATER CHALLENGE THAT AWARD.........................................................................8 POINT II PROOF OF THE EASEMENT WAS IMPROPERLY PRECLUDED............................................................................9 A. The Location Of The Easement On The West Side Of Plaintiff’s Property Is Established By Uncontroverted Evidence.............................................................................9 B. Plaintiff Is Confused Regarding The Informal Sketch Of The Easement .............................................................10 C. The Easement Could Not Have Caused “Great Surprise” To Plaintiff .......................................................................11 - ii - 1. Kieffer Properly Alleged That It Had Plaintiff’s Permission To Do That Which Plaintiff Claims Was Not Permitted.....................................................11 2. Plaintiff Alleged The Absence Of An Easement In His Complaint And Kieffer Denied It .......................13 3. Plaintiff Had Record And Constructive Notice Of The Easement.............................................................15 4. Plaintiff Had Actual Knowledge Of The Easement But Failed To Disclose It ...........................................15 5. Plaintiff’s Estoppel Argument Against The Town Is Meritless As To Kieffer .........................................17 POINT III PLAINTIFF’S ARGUMENT THAT THERE WAS NO FRAUD IS BELIED BY THE RECORD ...............................18 POINT IV PLAINTIFF’S ATTEMPT TO EXPLAIN AWAY THE EASEMENT IS WITHOUT MERIT ......................................21 A. Plaintiff’s Argument That The Easement Was Unused And Abandoned Is Without Merit ...................................21 B. Plaintiff’s Statement That The Easement Did Not Permit Drainage Of Storm Water From Lexington Woods Is Not Correct ......................................................21 C. Plaintiff’s Claim That Defendants Exceeded The Scope Of The Easement Is Not Supported By The Record ..............................................................................22 POINT V PLAINTIFF DOES NOT ACCURATELY CITE THE CONTENTS OF THE RECORD IN OTHER RESPECTS ....24 A. Plaintiff’s Citation To Testimony At The First Trial Is Irrelevant ......................................................................24 B. Plaintiff Does Not Dispute The Overwhelming Evidence That He Caused Flooding On His Property.....................24 - iii - C. The Town Subdivision Regulation Did Not Require Kieffer To Secure An Easement From Plaintiff ..............26 D. The Town Repeatedly Assured Kieffer That It Would Secure An Easement From Plaintiff ................................27 E. Plaintiff Misplaces Blame For Lexington Woods’ Drainage Problems In 2000 .............................................28 F. There Is No Proof In The Record That Flooding Occurred Because Kieffer Did Not Conform To Development Plans ..........................................................29 G. Plaintiff Incorrectly States That Kieffer Misrepresented The Location Of The Ditch..............................................30 H. Plaintiff’s Claim That Kieffer Created A Berm Finds No Support In The Record...............................................31 I. Kieffer Complied With Standard Engineering Practices ...........................................................................31 J. Mr. Kieffer Did Not Admit Ownership Of The Mitigation Pond Or The Pipes .........................................33 POINT VI PLAINTIFF’S ARGUMENTS REGARDING PRECLUSION OF THE DEFENSE DAMAGES EXPERT ARE WITHOUT MERIT .................................................................34 A. Plaintiff Does Not Deny That He Neither Alleged Nor Proved The Requisite Intentional Or Willful Failure To Provide More Detailed Expert Disclosure .................34 B. Plaintiff Does Not Deny That He Failed To Comply With 22 NYCRR 202.7....................................................35 C. Plaintiff’s Claim That Dr. Klauk’s Damages Testimony Was Irrelevant To Punitive Damages Is Without Merit.................................................................................36 CONCLUSION........................................................................................................37 - iv - TABLE OF AUTHORITIES CASES Braman v. Rochester Gas & Electric Corp., 54 A.D.2d 174 (4th Dep’t 1976)...................................................................13, 14 Carlson v. Porter, 53 A.D.3d 1129 (4th Dep’t 2008).......................................................................34 Chlystun v. Kent, 185 A.D.2d 525 (3d Dep’t 1992)........................................................................14 Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493 (1978) ...........................................................................................6 Colombini v. Westchester Cnty. Healthcare Corp., 24 A.D.3d 712 (2d Dep’t 2005)............................................................................5 Gordon v. Hancock, 292 A.D.2d 858 (4th Dep’t 2002).......................................................................35 Green Bus Lines, Inc. v. Consol. Mut. Ins. Co., 74 A.D.2d 136 (2d Dep’t 1980)..........................................................................13 Harris v. Armstrong, 64 N.Y.2d 700 (1984) ...........................................................................................9 In re Birnbaum, 76 N.Y.2d 783 (1990) ...........................................................................................7 In re Crowley v. O’Keefe, 74 N.Y.2d 780 (1989) ...........................................................................................7 Keinz v. Niagara Mohawk Power Corp., 41 A.D.2d 431 (4th Dep’t 1973).........................................................................14 Longo v. Armor Elevator Co., 307 A.D.2d 848 (1st Dep’t 2003) .........................................................................5 Loomis v. City of Binghamton, 34 N.Y.2d 537 (1974) ...........................................................................................7 - v - Nelson v. Times Square Stores Corp., 110 A.D.2d 691 (2d Dep’t 1985)..........................................................................9 New York University v. Continental Insurance Co., 87 N.Y.2d 308 (1995) .......................................................................................2, 3 Nickerson v. Winkle, 161 A.D.2d 1123 (4th Dep’t 1990)...............................................................18, 36 O’Donnell v. K-Mart Corp., 100 A.D.2d 488 (4th Dep’t 1984).........................................................................9 Smith v. D.L. Peterson Trust, 254 A.D.2d 479 (2d Dep’t 1998)........................................................................13 St. Hilaire v. White, 305 A.D.2d 209 (1st Dep’t 2003) .......................................................................34 Welch v. Mr. Christmas Inc., 57 N.Y.2d 143 (1982) ...........................................................................................6 Western New York Land Conservancy, Inc. v. Cullen, 66 A.D.3d 1461 (4th Dep’t 2009).......................................................................23 STATUTES Civil Rights Law Section 51 ......................................................................................6 CPLR 3018...............................................................................................................12 OTHER AUTHORITIES 22 NYCRR 202.7.....................................................................................................35 Karger, Arthur, The Powers of the New York Court of Appeals (rev. 3d ed. 2005) at § 16:3 ......................................................................................................7 RESPONSE TO PLAINTIFF’S JURISDICTIONAL STATEMENT Plaintiff Paul Marinaccio, Sr., challenges this Court’s authority to consider this appeal, arguing incorrectly that the two justice dissent was not based on a question of law. See Brief for Plaintiff-Respondent (“Plaintiff Brief”) at 4-8. Specifically, plaintiff contends that (1) the dissent measured the evidence against a standard not charged to the jury, (2) the dissent improperly found new facts, (3) a question of fact exists as to plaintiff’s entitlement to punitive damages and (4) the dissent was based on mixed questions of law and fact. Each of these arguments is without merit. A. THE DISSENT DID NOT APPLY THE WRONG LEGAL STANDARD Plaintiff’s argument that the dissent did not apply the law of the case (Plaintiff Brief at 4-6, 36-37) is incorrect. Plaintiff asserts, referring to three lines of the 30-line jury instruction on punitive damages (R. 1780-81), that the dissent confused the law governing the amount of punitive damages (R. 1884-85) with the law governing entitlement to punitive damages. Plaintiff Brief at 5-6. Plaintiff argues that, as charged, punitive damages could be awarded if the acts were wanton and reckless or malicious (Plaintiff Brief at 5), but that the dissent applied a different standard because it did not recite those exact words (just as the majority too did not recite the exact words of the charge). Plaintiff, however, ignores that part of the charge where that language is defined: - 2 - An act is malicious when it is done deliberately, with knowledge of the plaintiff’s rights, and with the intent to interfere with those rights. An act is wanton and reckless when it demonstrates -- demonstrates conscious indifference and utter disregard for its effect upon the health, safety and rights of others. R. 1780. The dissent first applied the malice standard as charged in determining that the record did not reflect conduct “motivated by maliciousness or vindictiveness.” R. 11a. It also applied the intent, conscious disregard and recklessness standards as charged in deciding that Kieffer had not engaged in outrageous or oppressive intentional misconduct, “conscious disregard of the rights of others or . . . conduct so reckless as to amount to such disregard.” R. 11a. The dissent, therefore, applied the correct standard as charged, and correctly so. Plaintiff’s attempt to distinguish New York University v. Continental Insurance Co., 87 N.Y.2d 308 (1995) must fail. Here, the trial court charged the jury that “[p]unitive damages may be awarded for conduct that represents a high degree of immorality and shows such wanton dishonesty as to imply a criminal indifference to civil obligations.” R. 1780. That is the same standard set forth in New York University: Punitive damages are available only in those limited circumstances where it is necessary to deter [persons] from engaging in conduct that may be characterized as “gross” and “morally reprehensible,” and of “‘such - 3 - wanton dishonesty as to imply a criminal indifference to civil obligations.’” N.Y. Univ., 87 N.Y.2d at 315-16. The dissent held that the evidence in the record was insufficient as a matter of law to meet this standard. R. 11a. Plaintiff’s argument that the dissent is based on something other than the pure legal question of sufficiency of the evidence is, therefore, incorrect. B. THE DISSENT DID NOT MAKE NEW FINDINGS OF FACT Plaintiff next argues that the dissent is “based on a differing view of the underlying facts.” Plaintiff Brief at 4, 34-35. That too is incorrect. The dissent did not view or decide any facts differently; it held them to be insufficient as a matter of law to warrant punitive damages. Specifically, plaintiff argues that the dissent erroneously concluded that (1) “the record reflects that KEI developed Phase III in accordance with all of the Town’s requirements,” and that (2) the record discloses no evidence that Kieffer intended to interfere with the use of plaintiff’s property. Plaintiff Brief at 34-35. 1. The Town’s Subdivision Regulation Relied Upon By Plaintiff Does Not Apply The dissent’s determination that Kieffer adhered to all Town requirements (R. 11a) is uncontroverted by any facts in the record. Plaintiff, however, attempts to create an issue by referring to a Town regulation he argues required Kieffer to secure an easement from plaintiff. Plaintiff Brief at 34. The - 4 - record, however, contains no testimony, exhibits or other evidence to support such a finding (see Point V(C), infra), and arguments by plaintiff’s counsel to the contrary (R. 1741-42) are not evidence. However, even if plaintiff’s argument were correct, the record is uncontroverted that the Town was required to (R. 275- 81, 387-88, 396-99, 509, 512-20, 1423, 4434) secure any necessary easement or permission for this drainage, and had done so. R. 4946-48, 4952, 6034-45. 2. The Record Is Uncontroverted As To Kieffer’s Lack Of Intent To Interfere With Plaintiff’s Use Of His Land As to the dissent’s determination that the record is devoid of evidence that Kieffer intended to interfere with plaintiff’s use of his property (R. 11a), that is a determination of a legal question. Plaintiff’s jurisdictional challenge in this regard is, therefore, without merit. Plaintiff misses the point in relying on the jury’s verdict that Kieffer intentionally caused water to enter onto plaintiff’s land to suggest that Kieffer intended to harm plaintiff. Plaintiff Brief at 35. The jury’s finding is not inconsistent with the dissent’s determination that no evidence was offered to show that Kieffer intentionally damaged or interfered with plaintiff’s use of his land. To the contrary, the record is uncontroverted that water has drained from the adjacent land onto plaintiff’s land for over fifty years (R. 124-25, 213-14, 295-96, 1419, 1437-39), that the subdivision storm water drainage plans used existing water flow - 5 - patterns to minimize downstream impacts (R. 339-41, 429), that the Lexington Woods subdivision drainage plan continued the flow of water along the same drainage pattern at controlled rates that did not exceed the rate experienced over the prior ten years (R. 1507-08, 1525-32, 1543-45), and that Kieffer always believed it had the right to continue this drainage pattern. R. 230-31, 290, 295-96. Moreover, New York law is clear that a defendant who demonstrates “compliance with all applicable industry and regulatory standards” is entitled to dismissal of a punitive damages claim as a matter of law. Colombini v. Westchester Cnty. Healthcare Corp., 24 A.D.3d 712, 715 (2d Dep’t 2005); see also Longo v. Armor Elevator Co., 307 A.D.2d 848, 849-50 (1st Dep’t 2003) (trial court should have dismissed punitive damages claim where building owner had, among other measures, hired consultants to evaluate performance of elevator that was later involved in accident). Here, as discussed in detail in Kieffer’s opening brief (Brief for Defendant-Appellant Kieffer (“Kieffer Brief”) at 32-37), it is undisputed that the water which drained onto plaintiff’s property was drained precisely as designed by the Town’s engineers, consistent in all respects with all local, state and federal requirements, and as approved by the Town. The dissent, therefore, correctly held that Kieffer complied with all applicable regulations and that the record contains no proof to the contrary. - 6 - C. NO QUESTION OF FACT EXISTS AS TO PLAINTIFF’S ENTITLEMENT TO PUNITIVE DAMAGES Plaintiff’s argument that a question of fact exists concerning his entitlement to punitive damages (Plaintiff Brief at 6) is without merit. As charged, the jury could award punitive damages against Kieffer only if Kieffer’s conduct represented “a high degree of immorality and show[ed] such wanton dishonesty as to imply a criminal indifference to civil obligations.” R. 1780. Plaintiff, however, does not and cannot cite to anything in the record to demonstrate such malicious conduct or intent. Plaintiff’s reliance (Plaintiff Brief at 6-7) on Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493 (1978) is misplaced. At issue in Cohen was Civil Rights Law section 51 which, unlike the common law standard governing punitive damages, permits a punitive damages award based upon a showing only that the defendant knowingly used a celebrity’s likeness without consent. Id. at 497. This Court has confirmed that the statutory standard at issue in Cohen is different than the more stringent common law standard, which demands proof of malice. Welch v. Mr. Christmas Inc., 57 N.Y.2d 143, 150 (1982) (under the statute “no more need be shown than knowing use”). Cohen, therefore, is inapposite. - 7 - D. THE DISSENT WAS NOT BASED ON A MIXED QUESTION OF LAW AND FACT Plaintiff next claims that the dissent is based on a mixed question of law and fact. Plaintiff Brief at 8. That is not correct. Mixed questions of law and fact arise where the exercise of discretion by the courts below is required to be made in the light of the answers to certain questions of fact and the parties are in dispute both as to how those questions of fact are to be resolved and as to how the discretion should be exercised. Karger, Arthur, The Powers of the New York Court of Appeals, (rev. 3d ed. 2005) at § 16:3. Here, neither the majority nor the dissent exercised discretion to resolve any disputed question of fact concerning plaintiff’s claim for punitive damages. The majority determined, as a matter of law, that the evidence supported the award. R. 9a. The dissent determined, as a matter of law, that it did not. R. 11a. The cases cited by plaintiff on this issue (Plaintiff Brief at 8) are easily distinguished. Two state, without analysis, that the dissent was not on a question of law. See Loomis v. City of Binghamton, 34 N.Y.2d 537, 537 (1974), dismissing appeal from 43 A.D.2d 764 (3d Dep’t 1973); In re Birnbaum, 76 N.Y.2d 783, 783 (1990), dismissing appeal from 159 A.D.2d 997 (4th Dep’t 1990). In the other, this Court held only that the dissent was not on a question of law because no party raised the issue. See In re Crowley v. O’Keefe, 74 N.Y.2d 780, - 8 - 780-81 (1989), dismissing appeal from 148 A.D.2d 816 (3d Dep’t 1989) (dissent related to claimed error not raised on administrative appeal). For all of these reasons, plaintiff’s jurisdictional objections are without merit. ARGUMENT POINT I KIEFFER PROPERLY MOVED TO DISMISS THE PUNITIVE DAMAGES CLAIM AND, THEREFORE, PRESERVED ITS RIGHT TO LATER CHALLENGE THAT AWARD Plaintiff argues incorrectly that Kieffer waived its right to challenge the punitive damages award because it allegedly failed to object to the punitive damages charge. Plaintiff Brief at 40. After plaintiff rested, the parties and the court agreed that all motions would be reserved. R. 1368. At the close of all proof, the parties and the court agreed to reserve motions until the jury began its deliberations. R. 1684. As the court noted, just before hearing the parties’ motions, “during the course of the trial all motions were reserved until after we were finished with the -- getting the case to the jury, just for the sake of -- for time.” R. 1841. At that time, Kieffer moved to dismiss the punitive damages claim, arguing that plaintiff failed to establish, as a matter of law, any legal basis for such an award. R. 1845-46. Kieffer raised this - 9 - issue again in its post-trial motions. R. 5997-6000. The issue, therefore, was preserved. As to plaintiff’s claim that Kieffer failed to object to the punitive damages charge (Plaintiff Brief at 40), the authorities he cites are inapposite. They hold that a punitive damages charge is binding if a party does not object to the legal standard in it. See, e.g., Harris v. Armstrong, 64 N.Y.2d 700, 702 (1984). That is not even an issue here. Neither Harris nor plaintiff’s other cases hold that a defendant who accepts the punitive damages charge is barred from challenging a punitive damages award. The right to challenge the sufficiency of proof as to a punitive damages award is preserved by moving the trial court to dismiss the claim, not by objecting to the charge. Nelson v. Times Square Stores Corp., 110 A.D.2d 691, 691-92 (2d Dep’t 1985); O’Donnell v. K-Mart Corp., 100 A.D.2d 488, 490-91 (4th Dep’t 1984). That is precisely what Kieffer did. POINT II PROOF OF THE EASEMENT WAS IMPROPERLY PRECLUDED A. The Location Of The Easement On The West Side Of Plaintiff’s Property Is Established By Uncontroverted Evidence Plaintiff argues that this Court cannot review the Appellate Division’s finding that the easement was on the east side of plaintiff’s property because it is a - 10 - factual determination not reviewable by the Court. Plaintiff Brief at 50. Plaintiff is incorrect, as that conclusory statement is not supported by any proof in the record -- in fact, it is refuted by all of the proof in the record, including all recorded documents which clearly describe the easement’s location on the west side of plaintiff’s land. R. 4946-48, 4952, 6034-45. Recognizing this irrefutable fact, plaintiff argues that Kieffer failed to preserve the issue. Plaintiff Brief at 52. This, of course, makes no sense as Kieffer is the one who brought the easement to the trial court’s attention and, despite having only one evening to address plaintiff’s request for preclusion, Kieffer referred the trial court to its pleadings, disputed plaintiff’s assertions, requested additional time to provide the trial court with additional facts and moved for a mistrial. R. 150-52, 160-61. After Kieffer’s motions were denied and preclusion was granted (R. 161-63), all parties and counsel were ordered not to mention the easement at trial. R. 169. Accordingly, Kieffer had to wait until its post-trial motion to raise the issue again. R. 5996, 6002-08. Kieffer, therefore, preserved this issue. B. Plaintiff Is Confused Regarding The Informal Sketch Of The Easement Plaintiff is confused about Kieffer’s argument regarding the sketch of the easement upon which plaintiff relies. Contrary to plaintiff’s argument (Plaintiff Brief at 51-52), Kieffer does not suggest that it was plaintiff who altered - 11 - the drawing located at R. 4950a. Kieffer simply states the obvious -- that the document was altered by someone. Kieffer Brief at 21-22, 42-44. In fact, the timing of the request for a sketch of the easement’s location and the date of that sketch make it impossible for the drawing to be what plaintiff claims it to be -- a survey by the Town. Plaintiff is also confused about the contents of, and enclosures to, the exhibits he submitted to the trial court. Kieffer never stated that plaintiff failed to submit to the trial court the drawing located at R. 4950a. Kieffer has always agreed that the drawing was an enclosure to a letter dated April 24, 1995, which is part of Court Exhibit 4. R. 4950. The document that plaintiff omitted from the record, however, is the enclosure to a letter dated March 2, 1995, which is also part of Court Exhibit 4. Kieffer Brief at 43; R. 4949. The March 2, 1995 letter states that it encloses a “copy of the Town of Clarence’s Right-of-Way and easement . . . together with a copy of the survey.” R. 4949. Plaintiff never included those documents in the record. C. The Easement Could Not Have Caused “Great Surprise” To Plaintiff 1. Kieffer Properly Alleged That It Had Plaintiff’s Permission To Do That Which Plaintiff Claims Was Not Permitted Preliminarily, Kieffer does not argue, as plaintiff contends (Plaintiff Brief at 55), that an easement need not be pled as an affirmative defense because it - 12 - is not listed in the CPLR. Kieffer argues that the easement did not have to be pled because plaintiff, for a number of reasons, was not surprised by its existence. CPLR 3018[b]. First, the record indisputably shows that Kieffer alleged as an affirmative defense that plaintiff had agreed to the conduct plaintiff claimed to be actionable. R. 4984. Plaintiff’s attempt to avoid this fact by stating that Kieffer “never bothered to answer” the Fourth Amended Complaint (Plaintiff Brief at 53, 57, 59) is misleading. In truth, when plaintiff moved to conform his complaint to the proof (R. 4249, 4250), the trial court and all counsel agreed that Kieffer could rest on its Answer to the Third Amended Complaint. R. 4267-72, 4279, 4982-87. Accordingly, no answer to the Fourth Amended Complaint was required. In addition, during oral argument on Kieffer’s post-trial motion to settle the record, plaintiff’s counsel conceded that: (1) plaintiff was not taking the position that Kieffer defaulted by not answering the Fourth Amended Complaint; and that (2) plaintiff was not objecting to inclusion of Kieffer’s Answer to the Third Amended Complaint in the record. See Transcript of April 27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011 at 18 (Exhibit A hereto). Accordingly, Kieffer’s Answer to the Third Amended Complaint, alleging plaintiff’s agreement - 13 - and assent to the conduct complained of (R. 4984), put plaintiff’s claimed lack of an easement squarely at issue. 2. Plaintiff Alleged The Absence Of An Easement In His Complaint And Kieffer Denied It New York law provides that, where a plaintiff introduces a matter that would ordinarily be an affirmative defense, and the defendant denies the allegation, the defendant need not separately dispute the issue. Green Bus Lines, Inc. v. Consol. Mut. Ins. Co., 74 A.D.2d 136, 142-43 (2d Dep’t 1980); see also, Smith v. D.L. Peterson Trust, 254 A.D.2d 479, 479 (2d Dep’t 1998) (because complaint alleged operation of vehicle with consent, and defendant denied in answer, permissive use issue was raised by plaintiff and arguably need not be pled by defendant as affirmative defense). Here, even if plaintiff had not specifically alleged as an affirmative defense that it had plaintiff’s agreement and assent to the drainage at issue, Kieffer’s express denial (R. 4982) of plaintiff’s allegation (R. 5002-03, 5907) that Kieffer lacked an easement clearly put that issue in dispute and gave notice to plaintiff, making plaintiff’s claim of surprise unsupportable. The trial court found no case law requiring Kieffer to expressly plead the word “easement” in its affirmative defense. R. 162. Rather than acknowledge this void, plaintiff fills it with inapposite authority. In Braman v. Rochester Gas & Electric Corp., 54 A.D.2d 174, 175 (4th Dep’t 1976), the court permitted - 14 - defendant’s prescriptive easement affirmative defense to stand because the allegations supporting it were relevant to other aspects of the case; the court did not hold that defendant was required to plead the easement as an affirmative defense. Id. at 175. Thus, plaintiff incorrectly summarizes the decision as “refer[ring] to dismissed easement defense as an ‘affirmative defense.’” Plaintiff Brief at 54. Likewise, in Keinz v. Niagara Mohawk Power Corp., 41 A.D.2d 431, 432 (4th Dep’t 1973), the court noted only that the defendant had alleged an easement as an affirmative defense. Id. at 432. It did not hold that the defendant was required to do so. Finally, in Chlystun v. Kent, 185 A.D.2d 525, 526-27 (3d Dep’t 1992), the court held that an easement need not necessarily be pled as an affirmative defense. The court found that the defense had been waived because defendant had failed to plead it and had neglected to request a jury charge and did not object to the court’s failure to so instruct the jury. Id. Here, by sharp contrast, Kieffer expressly denied plaintiff’s allegation that no easement existed, affirmatively alleged that it had plaintiff’s agreement and assent to the subject drainage and sought to offer proof of the easement to the jury. Obviously, therefore, plaintiff had notice that Kieffer was claiming that it had plaintiff’s permission to drain water onto his land. - 15 - 3. Plaintiff Had Record And Constructive Notice Of The Easement Critically, plaintiff does not deny that every detail regarding the existence, purpose and location of the easement on the west side of plaintiff’s land was contained in publicly recorded documents in plaintiff’s chain of title. That fact alone demonstrates, as a matter of law, that plaintiff had record and constructive notice of the easement long before this action was commenced. To suggest that he was “surprised” by the existence of the easement is, therefore, simply not credible. 4. Plaintiff Had Actual Knowledge Of The Easement But Failed To Disclose It As outlined in Kieffer’s opening brief, the record is crystal clear that plaintiff had actual knowledge of the easement but failed to disclose it. Kieffer Brief at 18-22. In that regard, it is undisputed that Kieffer demanded, but that plaintiff failed to produce, the easement during discovery. R. 7412, 7414. Plaintiff’s argument that Kieffer did not preserve this issue is hard to fathom as it was Kieffer who brought the issue to the court’s attention and plaintiff who affirmatively misstated to the trial court that no one had ever asked for production of an easement search or survey. R. 153. Kieffer repeatedly requested time to address this issue (R. 150-52) but the court refused. R. 161-63. - 16 - Plaintiff’s claim that he fully responded to the Town’s demand for production of documents, including the demand for a survey (Plaintiff Brief at 60) is even more disturbing. The record is devoid of any such disclosure because no such disclosure was made. In fact, the only cite plaintiff offers for support (R. 7414-19) does not identify any survey or the easement. Plaintiff then tries to justify his non-disclosure by arguing that Kieffer cannot rely on a document demand by a co-defendant. Plaintiff Brief at 59-60. Plaintiff cites no legal authority for this proposition because there is none. Obviously, co-defendants rely on all defense demands. Moreover, had plaintiff complied with this demand, as he was required to do regardless who served it, the easement of which plaintiff was always aware would have been disclosed and this entire issue would have been resolved pre-trial. Plaintiff then makes the remarkable argument that Kieffer did not object to plaintiff’s inaccurate discovery response. Plaintiff Brief at 60. Plaintiff, however, does not explain how Kieffer could have known that plaintiff had been untruthful when representing that he had produced all responsive documents (R. 7417) or how Kieffer could have known that plaintiff possessed this dispositive proof but was withholding it. Plaintiff’s willful non-disclosure and his subsequent request for preclusion of the proof he withheld should not be rewarded with an affirmance. - 17 - 5. Plaintiff’s Estoppel Argument Against The Town Is Meritless As To Kieffer Plaintiff next asserts that the informal sketch located at R. 4950a constituted a formal representation by the Town Attorney that the easement at issue was located on the east side of plaintiff’s land, rendering the easement issue irrelevant. Plaintiff Brief at 62. That claim is simply not true and finds no support in the record. Plaintiff cites only to arguments of counsel, not facts in the record, as to what the sketch means, when it was made and that plaintiff relied on it. Plaintiff Brief at 62 (citing R. 136-37, 142). Those arguments are not evidence. Moreover, all publicly recorded documents that were in plaintiff’s possession when he closed on the land and of which he, therefore, had actual and constructive knowledge, confirm that the easement is on the west side of plaintiff’s property. In addition, even if the Town could somehow be estopped from asserting its rights because of what plaintiff’s counsel claims the Town Attorney said, that would have no bearing on this appeal as Kieffer had no involvement with, and made no representations concerning, that sketch. Plaintiff also cites no support for his claim that Kieffer objected to including the sketch in the record. Plaintiff Brief at 30. To the contrary, the Affirmation of Kieffer’s counsel (Exhibit B hereto) demonstrates that Kieffer agreed to stipulate that the record be supplemented. It was plaintiff’s counsel, however, who omitted the overlooked page from the record. R. 4950a is irrelevant - 18 - in any event as it does not support plaintiff’s claim that the drainage easement granted to the Town is located on the east side of his property. See Kieffer Brief at 11-17, 20-22. POINT III PLAINTIFF’S ARGUMENT THAT THERE WAS NO FRAUD IS BELIED BY THE RECORD Plaintiff argues that Kieffer should not have alerted this Court to his improper conduct or that of his counsel at trial because only punitive damages are at issue. Plaintiff Brief at 69. Plaintiff is incorrect. New York law provides that “all circumstances surrounding the transaction” are admissible to rebut plaintiff’s claim for punitive damages. See Nickerson v. Winkle, 161 A.D.2d 1123, 1123 (4th Dep’t 1990). Proof of the easement, therefore, should have been allowed, and under no circumstances should plaintiff have been permitted to mislead the jury into believing no easement existed. While appellate courts rightly frown on unfair criticism of parties and counsel, the criticism in this case is both warranted and highly relevant. Plaintiff argues that he and his counsel acted appropriately in violating the trial court’s gag order because “[f]or purpose of the trial, there was no easement.” Plaintiff Brief at 74 (emphasis in original). This, of course, is simply not true. An easement does exist, and plaintiff and his counsel knew it long before trial commenced. R. 4946-48, 4559-63, 4952, 5949 (Feb. 1, 2007 consultation - 19 - with Baum, plaintiff’s real estate counsel), 6034-45. Moreover, the trial court knew an easement existed, but specifically instructed all parties and their attorneys not to mention it at trial under threat of “dire consequences.” R. 170. Plaintiff, however, in direct violation of that order, testified untruthfully that no easement existed. R. 612-13, 722-23. Perhaps more egregiously, plaintiff’s counsel, who heard the trial court’s order personally, told the jury multiple times during summation that no easement existed. R. 1740. Plaintiff’s argument that he did not commit fraud because Kieffer did not object when plaintiff untruthfully told the jury that no easement existed (Plaintiff Brief at 72-75) is stunning. A party’s failure to object, especially when under a gag order, does not turn falsity into truth. Plaintiff’s suggestion that Kieffer should have disobeyed the trial court’s order and raised the easement issue (Plaintiff Brief at 75) is simply not credible. Kieffer had no choice but to remain silent after being ordered to make no mention of the easement; and hope for justice on its post-trial motion or this appeal. Plaintiff’s next argument, that the trial court did not impose a gag order (Plaintiff Brief at 72-73), is obviously without merit. R. 169. The trial court ordered the parties and all counsel that there should be “no mention” made of the “easement” or its “existence” or “anything like that”: THE COURT: Yeah, I’m going to instruct all counsel -- I don’t know who is going to blurt out what here -- and I - 20 - think everybody understands that preclusion means that there should be no mention made of the easement, the existence of the easement or anything like that. Please instruct any witness before they come up, if you’re going to call them, that they should not make mention of that easement. R. 169 (emphasis added). Plaintiff then argues, without citation to or support in the record, that this order was limited only to “Defendants’ ‘evidence’ of an alleged easement on the west side of the property” (Plaintiff Brief at 72 (emphasis omitted)) and that the “trial court did not bar Mr. Marinaccio or his counsel from generally using the word easement or making mention of KEI’s failure to secure an easement on the property.” Plaintiff Brief at 73 (emphasis omitted). This is simply not true. The order applied to all counsel, not just defense counsel and expressly directed that “no mention” be made of the easement. R. 169. Plaintiff’s unsupportable assertions further reveal the lack of merit to plaintiff’s position on the entire easement issue as they directly contradict the trial court’s unequivocal order. Plaintiff’s and his attorney’s unequivocal statements to the jury that no easement existed were complete fabrications from which plaintiff gained an enormous and unfair advantage toward securing an unwarranted punitive damages award. Reversal is required on this basis alone. - 21 - POINT IV PLAINTIFF’S ATTEMPT TO EXPLAIN AWAY THE EASEMENT IS WITHOUT MERIT A. Plaintiff’s Argument That The Easement Was Unused And Abandoned Is Without Merit Plaintiff does not and cannot cite to any proof in the record for his argument that the easement was abandoned. Plaintiff Brief at 63-64. Plaintiff did not even allege, and neither the trial court nor the jury was asked to decide, if the easement had been abandoned. Moreover, all of the proof in the record shows that the easement has been used to allow water to drain into plaintiff’s ditch for more than fifty years. R. 124-25, 213-14, 295-96, 1419, 1437-39. In fact, water was running through the ditch in 2009. R. 1455. Although it is true that the Town (not Kieffer) had not maintained the ditch in some time, that is because plaintiff admittedly blocked the Town’s attempts to do so. R. 652-53. Also, contrary to plaintiff’s assertion, no evidence was offered to prove that a “castle like home” was built in the middle of the easement. Plaintiff Brief at 63 (citing R. 138-39). Statements by plaintiff’s counsel, however frequently repeated, are not evidence. B. Plaintiff’s Statement That The Easement Did Not Permit Drainage Of Storm Water From Lexington Woods Is Not Correct Plaintiff’s argument that the easement permits drainage only from one particular Clarence subdivision (Woodside) but not from Lexington Woods - 22 - (Plaintiff Brief at 64) is not correct and flatly contradicts the only evidence in the record. Preliminarily, Map 2225, to which plaintiff refers, is not the easement. That map merely shows the location of the ditch on plaintiff’s land. R. 4952. It does not even purport to define the scope of the easement. The language of the actual recorded easement, on the other hand, expressly and broadly permits “disposal and dispersal of surface waters from the adjoining premises.” R. 4947 (emphasis added). It is uncontroverted and, indeed, admitted by plaintiff, that Lexington Woods adjoins plaintiff’s property. R. 720-21, 4565. The easement, therefore, by its own terms, permits drainage from Lexington Woods. C. Plaintiff’s Claim That Defendants Exceeded The Scope Of The Easement Is Not Supported By The Record Plaintiff next speculates that evidence of the easement would not have changed the punitive damages verdict because defendants exceeded the scope of the easement by draining too much water. Plaintiff Brief at 65. This issue, however, was never alleged, submitted to or determined by the jury. Indeed, the court precluded all proof of the easement and its scope. Had the jury been allowed to consider the issue, the irrefutable evidence shows that Kieffer’s engineers prepared drainage calculations for Lexington Woods which ensured that storm water would continue flowing just as it had in the past, at no higher than the - 23 - controlled rate equal to the ten-year storm rate for the undeveloped parcel. R. 1507-08, 1525-32, 1543-44. The proof would also have revealed that if plaintiff had abided by the terms of the easement, the Town would have been allowed to maintain the ditch and prevent the flooding altogether. R. 722-23, 1023-24, 1400, 1445-46, 1489-90. Also, contrary to plaintiff’s arguments (Plaintiff Brief at 66), Western New York Land Conservancy, Inc. v. Cullen, 66 A.D.3d 1461 (4th Dep’t 2009) does not hold that preclusion of evidence of a recorded easement is harmless if the defendant engaged in conduct beyond its scope. First, that case did not even involve an easement. It involved an unspecified allegation by the defendants that they had permission to excavate the plaintiff’s property and install landscaping. Id. at 1462. The court disagreed and, unlike this case, ruled that the evidence proposed “would not have established that defendants received permission to excavate the Land Conservancy’s property and to extend a pond over it, or to cut down trees and to plant nonnative trees in their place.” Id. Here, by stark contrast, the record reveals that defendants did not exceed the scope of the recorded easement and had the right to do what they did -- i.e. drain water through the subject drainage ditch just as all the adjacent landowners had done for fifty years. R. 124-25, 213-14, 295-96, 1419, 1437-39, 4946-48, 4952. - 24 - POINT V PLAINTIFF DOES NOT ACCURATELY CITE THE CONTENTS OF THE RECORD IN OTHER RESPECTS A. Plaintiff’s Citation To Testimony At The First Trial Is Irrelevant This Court should disregard plaintiff’s repeated citations to witness testimony contained on pages 1889 to 4385 of the record. As plaintiff is well aware, those pages represent testimony from the first trial of this action that ended in a mistrial in February 2009. R. 5009. That testimony obviously was not before the jury in September 2009 when it rendered the verdict at issue and, therefore, cannot support the jury’s punitive damages award. B. Plaintiff Does Not Dispute The Overwhelming Evidence That He Caused Flooding On His Property During the first trial, plaintiff moved in limine to exclude all evidence that plaintiff caused his own damages. R. 7005-09. The trial court denied the motion, holding that such evidence was “particularly” relevant to plaintiff’s punitive damages claim. R. 4124-27. The parties agreed that this and all other in limine rulings from the first trial would bind the parties in the second trial. R. 6541, 6558. Plaintiff does not dispute this binding evidentiary ruling, which holds that evidence of plaintiff causing the flooding is relevant to plaintiff’s punitive damages claim. Nor does plaintiff address the authorities cited by Kieffer that support this evidentiary ruling. See Kieffer Brief at 57-58 (plaintiff’s contribution - 25 - to his own injury can negate his punitive damages claim). Accordingly, precluding the jury from considering the proof that plaintiff caused his own flooding (R. 1782), especially after they were allowed to hear it, was reversible error. The record of the second trial resoundingly demonstrates that plaintiff did in fact cause the flooding on his property by admittedly failing to maintain the drainage ditch and by admittedly refusing to allow the Town to do so. See Kieffer Brief at 59-62 (e.g., citing undisputed testimony that if plaintiff had permitted the Town to maintain the ditch, the land would have dried out. R. 1488-90). Plaintiff does not dispute these facts in his brief either. Plaintiff testified that the land was “completely dry” when he purchased it in 1995. Plaintiff Brief at 10. He admitted, however, that he did not walk the whole property in 1995 (R. 582-83) and that he only saw 200 to 300 feet in from Lapp Road and an unspecified area on the south property line near the gas right of way. R. 583-84. (To reference a map of plaintiff’s land, see R. 4878, also reproduced in Kieffer’s opening brief at 17.) Moreover, plaintiff’s own wetlands expert testified that wetlands already existed on the property as early as 1978 and that by 1990 the land contained “a wetland that stretches across the center of the property.” R. 1002. The Trial Court’s refusal to allow the jury to decide whether plaintiff caused or contributed to the flooding was reversible error. - 26 - C. The Town Subdivision Regulation Did Not Require Kieffer To Secure An Easement From Plaintiff Plaintiff misstates four times in his brief that Kieffer knew that it was required by the Town’s subdivision regulation to secure an easement from plaintiff as part of its application for the Lexington Woods development plan. Plaintiff Brief at 18, 20, 44, 45. Specifically, plaintiff argues that the Town’s subdivision regulation requires an easement where a watercourse traverses a parcel such as plaintiff’s. See Plaintiff Brief at 34 (emphasis added). This is not correct. The regulation applies to a watercourse traversing a subdivision, not a parcel. That distinction is critical because the regulation applies only to that portion of the ditch that runs along Kieffer’s subdivision, not the portion that continues onto plaintiff’s property (which is not, and never has been, a subdivision). R. 386. The regulation states: [w]here a subdivision is traversed by a . . . drainage way . . . there shall be provided a . . . drainage right of way conforming substantially to the lines of such watercourses, and such further width or construction, or both, as will be adequate for the purpose. R. 4421 (emphasis added). The ditch that traverses Lexington Woods flows through plaintiff’s property all the way to the Niagara River. R. 337-41. Contrary to plaintiff’s arguments, Kieffer obviously was not required to secure easements from hundreds of downstream property owners. - 27 - Plaintiff also incorrectly describes Town Engineer Latona’s testimony in that regard. Plaintiff Brief at 45. Mr. Latona testified that a drainage ditch traversed the Lexington Woods subdivision, and that an easement was required for that part of the ditch on the subdivision. R. 386-88. Mr. Latona did not testify that the ditch traversed any subdivision on plaintiff’s property (R. 386-87), or that the Town’s regulation required Kieffer to obtain an easement from plaintiff. R. 388- 89. Nor did Town Director of Community Development, James Callahan, testify that any Town regulation required Kieffer to obtain an easement from plaintiff. He stated only that “generally speaking, the Engineering Department won’t sign off on a development plan unless easements are in place.” R. 508-09. Specifically as to Lexington Woods, he testified that the Town Board approved Kieffer’s development plan for Phase III even though it knew that the Town (not Kieffer) had to have an easement from plaintiff. R. 517, 519-20. D. The Town Repeatedly Assured Kieffer That It Would Secure An Easement From Plaintiff The record is uncontroverted that the Town repeatedly agreed that it, not Kieffer, was required to and would secure a drainage easement from plaintiff. R. 275-81, 387-88, 396-99, 509, 512-20, 1423. The record is also undisputed that Kieffer did not, as plaintiff claims, ignore a letter from plaintiff’s attorney addressed to the Lexington Woods - 28 - homeowners, (not to Mr. Kieffer) (R. 282-83, 7081) and continue dumping water on plaintiff’s land. Plaintiff Brief at 23. As the record shows, Kieffer called its attorney to seek advice when the letter arrived (R. 288) because the Town had assured Kieffer it would obtain any required easement. R. 275-81, 287-88, 396-99, 509-20, 1423. As everyone but the jury in this case now knows (and as plaintiff and his counsel always knew), the Town already had an easement permitting the very drainage complained of by plaintiff. R. 4946-48, 4952, 6034-45. E. Plaintiff Misplaces Blame For Lexington Woods’ Drainage Problems In 2000 Plaintiff incorrectly blames Kieffer for drainage problems dating back to 2000, but makes that assertion only in the heading of one section of his brief, while identifying no record proof to support it. Plaintiff Brief at 11. In fact, there is no such proof. To the contrary, the record is undisputed that flooding in 2000 was caused by the failure of the Lexington Woods homeowners to maintain the Lexington Woods drainage system for which they had personal responsibility. R. 473-74. Those homeowners, not Kieffer, owned the drainage facilities in 2000 and were responsible for all maintenance. R. 204, 440, 473-74. To rectify the situation, the Town asked Kieffer after the fact to perform work on the Lexington Woods drainage system as a condition of securing approval for development of Phase III. R. 482. This work was not part of Kieffer’s original engineering plan and was not, until that time, Kieffer’s - 29 - responsibility. R. 482. As to maintenance of drainage ditches north to Lapp Road, the record is undisputed that it was the Town’s responsibility, not Kieffer’s, to perform and secure any necessary easement for that work. R. 275-81, 387-88, 396- 99, 509, 512-20, 1423. F. There Is No Proof In The Record That Flooding Occurred Because Kieffer Did Not Conform To Development Plans Plaintiff claims that Kieffer did not conform to development plans and that this caused drainage problems. Plaintiff Brief at 13. The record once again contains no proof to support these claims. In fact, while Mr. Latona agreed that a report submitted to him implied that Kieffer had not drained all lots exactly as described in development plans, he specifically rejected plaintiff’s attempt to link the alleged deviation with drainage problems. R. 436-37. Plaintiff also claims that Kieffer misrepresented the path and amount of water flow from Phase II. Plaintiff Brief at 13, 16. Once again, plaintiff’s citations to the record (R. 419-24, 440, 908-09) do not support these claims. To the contrary, Town Engineer Latona testified that if more water flowed into a mitigation pond than had been planned, it was not an issue because the water “would just back up in the retention pond . . . and then flow ultimately out . . . at the controlled rate.” R. 424-26. The record is uncontroverted that the drainage plan allowed storm water to drain out of the subdivision at a controlled rate (the ten-year storm rate for the undeveloped parcel) (R. 1507-08, 1525-32, 1543-44), - 30 - into the drainage ditch on the western portion of plaintiff’s land (R. 115-25), and north to Lapp Road, precisely as it had for at least fifty years. R. 124-25, 213-14, 295-96, 1419, 1437-39. Nothing Kieffer did changed any of that and, in any event, the record is devoid of any proof that Kieffer maliciously or with criminal indifference intended to harm plaintiff or his land. G. Plaintiff Incorrectly States That Kieffer Misrepresented The Location Of The Ditch Plaintiff argues that Kieffer misrepresented the location of the ditch to the Town. Plaintiff Brief at 14. Plaintiff is wrong again. There can be no credible dispute about where the ditch is located. It begins far south of plaintiff’s property and continues north on the west side of plaintiff’s land to Lapp Road. R. 1119-20, 1436-43, 4878. One need only look at plaintiff’s land to see that. Surely plaintiff, who lived there many years, knew where the ditch was located; as did the Town. In fact, Town Engineer Latona personally visited the property. R. 350, 483. He testified only that Kieffer’s surveyor had incorrectly identified the location of drainage pipes from Lexington Woods (R. 378-79), not the ditch. The Town was well aware that water from those pipes would flow into the ditch on the west side of plaintiff’s land. R. 285-86, 377-78, 1389-90. No one ever misrepresented the ditch’s location to the Town. - 31 - H. Plaintiff’s Claim That Kieffer Created A Berm Finds No Support In The Record Attempting to deflect attention from his own contribution to the flooding, plaintiff incorrectly claims that Kieffer created a berm on plaintiff’s property. Plaintiff Brief at 17. The proof, however, is entirely to the contrary. Plaintiff’s expert testified that a berm was present on plaintiff’s property, but he did not testify, and plaintiff offered no proof, that Kieffer created it. R. 1046-48. In fact, plaintiff himself could only say that “somebody” created a berm. R. 641, 643. He did not say who. Plaintiff did not even allege in any of his four complaints (R. 5000-07, 6205-18, 6220-26, 6444-53) or elsewhere that Kieffer created the berm. Surely, if Kieffer had created a berm on plaintiff’s property, plaintiff would have immediately demanded its removal and the record contains no evidence of such a demand. R. 643. Moreover, the only evidence in the record as to who may have created the berm is that plaintiff himself unloaded large amounts of fill on his property when he built his house. R. 798, 825. I. Kieffer Complied With Standard Engineering Practices Plaintiff argues that Kieffer did not follow standard engineering practices, citing testimony from his employee, Anthony Milone, that the ditch did not have the requisite capacity because it overflowed. Plaintiff Brief at 48-49 (citing R. 917-922). That testimony, however, does not even attempt to demonstrate a substandard drainage plan design. To the contrary, it merely - 32 - confirms plaintiff’s failure to maintain the ditch and his failure to allow the Town to do so. See Kieffer Brief at 59-62; R. 1488-90. As Mr. Milone himself testified, vegetation growing in a ditch impedes water flow and reduces the capacity of the ditch to carry water. R. 1178-79. Also, while Mr. Milone testified that some of plaintiff’s employees “cleaned” the ditch, it was not even a foot deep when they finished (R. 912, 915-16), while its original depth was two and one-half feet. R. 1448-49. Obviously, allowing a two and one-half foot ditch to fill to a depth of less than one foot, while allowing vegetation to choke it, would impede its ability to drain water. R. 915, 1449-50, 1487-89. Finally, Mr. Milone’s testimony that he “did not see” any drainage calculation from Kieffer that analyzed the ability of the ditch to carry water (R. 910-11) proves nothing. Bissell & Stone, the engineering and surveying firm retained by Kieffer, did perform those calculations. R. 4460-64, 4894-4908. Mr. Milone testified only that he did not see them. Plaintiff also claims incorrectly that the mitigation pond was not properly designed because it did not have a berm. Plaintiff Brief at 15. Specifically, Mr. Milone testified that when he designed detention ponds, and for other ponds he had seen, there is always a safety berm constructed at the top to avoid overflow. R. 918. Mr. Milone, however, failed to state whether those ponds were above or below surface. That distinction is critical. - 33 - The mitigation pond here was not the type that would require a berm or any other type of damming (R. 1530-31) because it was a below-surface pond that was formed by digging into the ground. R. 1531. If any water were to overflow the pond, it would simply follow the natural topography and go where it would always have gone pre-development. R. 1531. Plaintiff never disputed that testimony. Mr. Milone’s testimony that the mitigation pond was too small because he saw “overspilling of the water over its banks” (R. 922) does not support plaintiff’s claim that it was undersized either. Mark Visscher, Kieffer’s engineering expert, testified that, pursuant to calculations based on the Erie and Niagara Counties Storm Drainage Design Manual (“Manual,” located at R. 7369- 78) and all related requirements (R. 1505-06, 1528), the pond was required to hold 45,720 cubic feet of water. R. 1530. He testified that, as built, it actually held 54,200 cubic feet. R. 1530. Neither Mr. Milone nor anyone else disputed this testimony and plaintiff offered no calculations or other information to support a claim that any regulation or provision of the Manual was violated, or that the pond was undersized. J. Mr. Kieffer Did Not Admit Ownership Of The Mitigation Pond Or The Pipes Contrary to plaintiff’s statements (Plaintiff Brief at 49), Mr. Kieffer did not admit that he owned the mitigation pond or the outflow pipes, or that they - 34 - were located on the lot that he owned at the time of trial, Lot 4. To the contrary, he testified that the Town owned the outflow pipes from the mitigation pond (R. 191- 92) and that the Lexington Woods homeowners collectively owned the mitigation pond adjacent to Lot 4. R. 192-93, 204-05, 207-08. POINT VI PLAINTIFF’S ARGUMENTS REGARDING PRECLUSION OF THE DEFENSE DAMAGES EXPERT ARE WITHOUT MERIT A. Plaintiff Does Not Deny That He Neither Alleged Nor Proved The Requisite Intentional Or Willful Failure To Provide More Detailed Expert Disclosure Plaintiff fails to address New York law holding that preclusion of a witness without proof of intentional or willful failure to provide sufficient disclosure and prejudice to plaintiff constitutes reversible error. Carlson v. Porter, 53 A.D.3d 1129, 1132 (4th Dep’t 2008); see also St. Hilaire v. White, 305 A.D.2d 209, 210 (1st Dep’t 2003) (affirming a trial court’s refusal to preclude expert testimony where the late disclosure was unintentional and did not prejudice plaintiff). Nor does plaintiff dispute that he never alleged, let alone offered proof, that Kieffer acted intentionally or willfully in supposedly failing to provide sufficiently detailed information concerning Dr. Klauk’s damages opinion. Preclusion of Dr. Klauk’s opinion, therefore, requires reversal as a matter of law. - 35 - B. Plaintiff Does Not Deny That He Failed To Comply With 22 NYCRR 202.7 Plaintiff fails to substantively address Gordon v. Hancock, 292 A.D.2d 858, 858 (4th Dep’t 2002) or other law requiring that a motion to preclude be denied absent compliance with 22 NYCRR 202.7(a). Plaintiff does not claim that he even attempted to comply, because he did not. Indeed, it is uncontroverted that plaintiff accepted defendants’ expert disclosure, raised no objection and then sprang the motion to preclude two weeks before trial. R. 6611-12, 6623. At no time did plaintiff attempt to resolve his purported concerns about the sufficiency of that disclosure. R. 6612. By contrast, in response to plaintiff’s motion, defendants defended their disclosure but also offered to supplement, if necessary. R. 6565, 6612. Recognizing his failure to comply with Rule 202.7(a), plaintiff argues only that his lack of compliance is an issue not preserved by Kieffer. Plaintiff Brief at 78. That is not correct. R. 6611-12. Rule 202.7(a) provides that no motion shall be filed with the court unless there [has] been served and filed with the motion papers . . . an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion. 22 NYCRR 202.7(a) (emphasis added). Failure to comply with these requirements mandates denial of a motion to preclude. Gordon, 292 A.D.2d at 858. Because - 36 - plaintiff admittedly made no effort to comply with these requirements, the trial court’s order of preclusion constitutes reversible error. C. Plaintiff’s Claim That Dr. Klauk’s Damages Testimony Was Irrelevant To Punitive Damages Is Without Merit Plaintiff argues that preclusion of Kieffer’s damages expert was not error because expert testimony on compensatory damages is not relevant to punitive damages. Plaintiff Brief at 75, 80. Plaintiff is incorrect. New York law is clear that when a plaintiff seeks punitive damages, “all circumstances surrounding the transaction . . . are admissible to rebut plaintiff’s contention that defendant acted with evil or wrongful motives.” Nickerson, 161 A.D.2d at 1124. Moreover, New York law (and the jury charge in this case to which plaintiff raised no objection) required that punitive damages be “proportionate to the actual and potential harm suffered by Mr. Marinaccio and to the compensatory damages you awarded Mr. Marinaccio.” R. 1885. The testimony of defendant’s damages expert, Dr. Klauk, therefore, was directly relevant to the punitive damages issue and his preclusion requires reversal. - 37 - CONCLUSION For the foregoing reasons and the reasons set forth in its opening brief, Kieffer respectfully requests that the Court modify the order of the Appellate Division by dismissing the punitive damages award with prejudice. Dated: Buffalo, New York November 29, 2012 PHILLIPS LYTLE LLP By Michael B. Powers Patricia A. Mancabelli Attorneys for Defendant-Appellant Kieffer Enterprises, Inc. 3400 HSBC Center Buffalo, New York 14203-2887 Telephone No.: (716) 847-8400 Doc #01-2614565.6 EXHIBIT A TO REPLY BRIEF - 39 - d (_') ~ ., ffi IL ;E Transcript of April 27,{2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011 . . ,, STATE OF NE\tJ · YORK : SUPREME COURT COUNTY OF ERIE : CIVIL TERM : PJ.I..RT 33 ---------------------------------------x . PAUL tvJARINACCI 0,. SR. , Index.No . Plaintiff, 12006-006978 vs. TOWN OF CI,ARENCE, KIEFFER ENTERPRISES, INC., Defendants. ---------------------------------------x 50 Delaware Avenue Buffalo, New York April 27, 2011 B E F 0 R E: HONORABLE FREDERICK J. MARSHAI.I~, Supreme Court Justice A P P E A RAN C E 8: JOSEPH J. MANNA, ESQ . LIPSITZ GREEN SCINE CAMBRIA LJ..,p Appearing for the Plaintiff DENNIS P. GLASCOTT, ESQ. GOLDBERG SEGALLA LLP Appearing for Defendant Kieffer Enterprises PATRICIA MANCABELLI, ESQ. PHILLIPS LYTLE LLP Appearing for Defendant Kieffer Enterprises fvlarcia M. Langer Sr. Court Reporter - 40 - (' ~ ....... Transcript of April27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. lvJarinac:cio vs Kieffer Enterprises, Irw. 2 1 (2:05p.m. all counsel present.) 2 COURT CLERI\: Counsel, please place your 3 appearances on the record beginning with plaintiff. 4 HR. MANNA: Joseph Manna, Lips:Ltz Green, for the 5 plaint.i ff. 6 1'18. MANCABELLI: Patricia Mancabelli, Phillips 7 Lytle, for Kieffer Enterprises, Inc .. 8 MR. GLASCOTT: Dennis Glascott, Goldberg 9 Segalla, for Kieffer Enterprises, Inc., as well. 10 'l'HE COOHT: Both the two of you in the courtroom 11 bring back wonderful memories. How are you both? 12 MR. MANNA: Well Judge, thank.s. 13 'I'l·H!; COURT: l''liss Mancabelli, you sure you Nant 14 to get in on this -- 15 MS. MANCABELLI: I can't wait. 16 THE COURT: -- affair? 17 MS. IYJANCABELLI: I've been in for a\'Jhile. I'm 18 just plodding along, your Honor. 19 THE COUR'I': Okay. Well, let's start vdth ·the 20 areas of disagreement on the motion to settle the record. 21 Amy has given me an e-mail -- copy of.an e-mail in which 22 ii: appears that there are four areas of disagreement, is 23 that correct? 24 Let me start with Hr. Manna. Is that your 25 understanding of it? - 41 - ( ··. . c· ...... ~ ... Transcript of April 27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. Had.naccio vs Kieffer Enl:erpr.ises, Inc. 3 1 ~IJR. MANNA: I think 1t generali:zes ·the exhibits 2 --- or the disputes, Judge, but I do think i·t r s generally 3 correct. I don't think it's right on the money and 4 addresses every issue, but -- 5 THE COURT: Okay. But we've reached agreement 6 --you've reached agreement on most of these issues. It's 7 just really a few, correct? 8 l'1S. MANCABELTJI: We defini·tely reached agreement 9 on some i.ssues, your Honor. 'fhere are four main issues 10 ·that we still have disagreement on, and within those there 11 may be some i1:1sues, but I agree with your assessment that 12 there are basically four issues. We did reach some 13 some agn;ements earlier this week on Monday when we spoke. 14 THE COUR'I': Okay. Let's start ~td.th the exhibits 15 that Here no·t adm:i.t·ted into evidence. Tha·t' s certainly an 16 area -- I think we can agree on that is an area of 17 disagreement.. 18 MS. ivJZ.I.NCABELLI: Correct. 19 THE COURT: And it's my understanding that the 20 defendant would like all exhibits, at least the ones you 21 can find, to go ·to the Appellate Division and be pari: of 22 the record. 23 And, I\1r. M·annar it's my understanding your 24 position is that only those that are in evidence -- 25 LI.I!R. MANNA: I think you have it reversed, ,Judge. - 42 - ( .... (, Transcript of April27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. 1 2 3 4 5 6 7 8 9 10 1J. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~4arinaccio vs Kieffer. Enter.pd.ses, Inc. 4 THE COUR'r: I do have i·t flipped. You want all of them. Miss Mancabelli, you want just the ones in evidence. LviS. MANCZ.\BELI,I: Correct, you.r Honor. THE COUH'I': Normally I \..,ould say just the ones in e\d.dence, but I \..,ant to hear. Mr. Manna. on the subject. MR. NANNA: Judge, no:r:mally I would agree \oJi th you that it's the exhibits tha.t are in evidence and the ones that are in dispute as to whether they should have gone in evidence or not into evidence. 1-\nd you and I, your Honor, tve've had this in ano·ther case, similar issue, so I'm aware of how you deal with it. Here 1 s my probiem in ·th:Ls case. In this case, because I haYen't had any chance to go back and look at the trial transcript, frankly r I don It knmoJ what documents that didn't go into evidence are disputed tha.t I believe should have. So I don't want my record narrowed here where I somehow omit -- or we omit an exhibit: that didn't go into evidence that th('"re 1 s a big dispute on. And I just haven't had a chance, because of the volume of the papenmrk -- and, frankly, I haven 1 t even seen the -- the transcript from the first ·trial ever, what those issues are, what those exhibits are. So I looked at the Fourth Department rules on ·this, Judge, and you know section - 43 - c·· '· c-..:. c.: Transcript of April 27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. Marlna.cc:i.o vs Kieffer Enterprises, Inc. 5 1 1000.4 says absent-- a.nd this is subsection one, that's G 2 one. Let me get it right. 1000.4 G one, it says, "absent 3 a court order or stipula·tion of the parties r all exhibits 4 shall be submitted to the Court. 11 And ·then if you drop 5 dovm to sub part tNo it says, trto the extent tha·t it 1 s 6 practicable, all relevant and necessary exhibits shall be 7 prin·ted in the record on appeal 11 • So whether the term 8 "all exhibits" means all exhibi·ts entered into evidence, I 9 think you could look at it that way, and you could look at 10 it the vJay that I'm arguing here. So I'm try:Lng to err on J.1 the side of caution, Judge, so I don't get blindsided 12 later on down the road about an exh:Lbit that didn't get 13 entered into evidence and v1hich I thought ought to go into evidence. 15 THE COURT: Okay. Miss Mancabelli? 16 MS. MANCABEI,LI: Yes, your I-lono.r. I 1 11 give you 17 some add.i. t:Lonal authority. It's -- I don't knmv hovl to 18 pronounce it. It's F R U I N, FJ:u:Ln-Colnon Corp. versus 19 NFTA, 180 AD2d 22 Fourth Department 92. nAn exhibit 20 excluded f1:om a ·trial should be part of the record on 21 appeal where admissib'ility of that exhibit is a·t issue in 22 the appeal." So, for example, t.he easement exhibits, your 23 Honor, alt.hough those are trla.l -- Court Exhibits, and 24 they are in the record, that would be one such example. 25 Mr. Manna's client didn't fil~ an appeal. He's not an - 44 - ( .. -. ..... ~··· Transcript of April27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. Mar:i.nacd.o vs t u: IU ,_ ~ o: ffi Ul :5 (, .. Transcript of April27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. t-1a):inaccio vs Kieffer Enter.pd.ses, Inc. 9 1 trying to work things out after papers. We do not want 2 them in, you.r· Honor. rt•s jus·t excessive. We don't 3 believe they're properly included, and we would not put 4 any EB'l's, no matter who used them to refresh a particular 5 w~tness's recollection. 6 THE COURT: Now, give rue example of some of the 7 other documents that -- that you want that you t-~an:t to 8 exclude. 9 MS. MANCABELI,I: That we want to exclude, your 10 Honor? ·11 THE COURT: Yes. 12 MS. i'-1ANClmELLI: I Hill give you references to 13 the exhibit and the description per the -- the Exhibit 1, 14 Court Exhibit 1. Exhibit 21, Army Corps of Engineers memo 15 dated 6-5-02. Exhibit 22, Army Corps of Engineers letter 16 dated 5-5-0 4. Exhibit 24, Acadia Construction letter Mr. 17 Milone to Mr. Latona dated 10-13-05. Exhibit 25, an 18 appearance ticket dated 9-15-05. 19 'rHg COOR'r: Okay. I just -- you've given me a 20 .flavor hc~re. \rvhat I • m going to ask you nmv is do you 21 knovJ, can you tell me for a fac·t that whether any of those 22 exhibits, or any other exhibits that were not in evidence, 23 were perhaps objected to with the Court sustaining an 24 objection? Can you tell me any of that? 25 i"JS. iVJA.NCABELLI: I can't, your Honor. - 48 - c··· ( ~. ···~ ;.·.· .. 0: "' "-if ll! ~ 0: fu 0: 0: UJ s Transcript of April 27,2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 L'1ar1.naccio vs Kieffer gnterprises 1 Inc. 10 THE COURT: You can't. So, in oi:her 1.,rords, maybe some of the exhibits that are not in evidence were offered and the Court sustained an objection, and perhaps that's going to come up on appeal. lv.iS. MANCABELLI: How -- hm-1 would that come up on appeal? He's not an appellant. THE COURT : I don 1 t kno1>1. I -- I 'm not sure right off -- right off the bat, but it might. I mean I could -- I could see that it might happen, and I can't exclude that possibility. MS. MANCABELLI: May I offer a suggestion, your Honor? THE COURT: Pardon? MS. MANCl-\BELLI: May I offer a suggestion? THE COURT: Sure. MS. MANCAB,ELLI~ We have done our best over the last 36 hours to find, scan, and supply to our printer all of the exhibits that Mr. Manna is seeking to include. There are issues with timing. If Mr. Manna would agree to accept service of a record this week as an electronic document, getting these documents into the record, supplied to the Court by Friday -- we have to perfect by Friday. vile can't ·take that chance. You know that. And so if he twuld be willing to accept service of a record which is nm..,r apparently about ten volumes of 800 pages - 49 - ( • .. c ... 8 ci u. T:; .. rc IP. if: rJl ~ fu a; rc IU 5 .~ rl if: 0 IL (.·· Transcript of April 27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. J).1arinaccio vs Kieffer Enterprises, Inc. 11 1 each, \-Jhich is one of the reasons we couldn't simply send 2 one copy to his office to revievT, uh, we would perhaps be 3 able to get this accomplished by having -- but not EBTs, 4 and those are just -- I -- maybe we can get that done if 5 that's wha·t you're going to order, your Honor, but I would 6 suggest it sounds like you're leaning towards ordering 7 exhibits that were moved -- I'm sorry-- that were marked 8 b1.1·t not admitted into evidence. If we could serve a 9 record on appeal this v1eek by electronic copy, next week 10 by hard copy, we may be able to resolve that. 11 THl~ COURT: All right. ~ly ruling is going to be 12 that all exhibits, whether in evidence or not, shall be 13 part of the record on appeal with -- with the exception of 14 transcripts of Examinations Before Trial. 15 MS. MANCABEI,JJI: l.11ay I add one request, your 16 Honor? We are a.Nare, and Mr. Manna has identified some 17 specific exhibits that are missing, which are expert files 1.8 that went back to the experts. There are a handful of 19 additional exhibits that Mr. Glascott's office attempted 20 to secun1 from Mr. L"la.nna' s office. There are missing 21 exh:Lbi·ts. With the caveat tha·t I can 1 t find a missing 22 exhibit, everything that we have that was marked will be 23 included with the exception of missing exhibits. and EBT 24 transcripts. 25 'I'HE COURT: I have a -- again a copy of an - 50 - c··· '···· Transcript of April 27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. Mar:.i.nacc.i.o vs Kieffer Enterprises, Inc. 12 l e-mail tha·t lists, I ·think, what you're talking about. 2 Missing plaintiff's ·trial exhibits and missing defendant's 3 trial exhibits. Under plaintiff's trial exhibits it starts with Exhibit 69 and finishes with Exhibit 208. And 5 defendant's trial exhibits WW and 0. 6 Hr. Manna, what do you think about that? We've 7 got some missing exhibits.. And ·they're listed here, have 8 you seen this list? 9 t1R. £vJANNA: I have probably seen it, Judge, bu·t 10 I don't -- I 1 m not -- I don 1 t know what's in the contents 11 of the document that you're reading, but look, Judge, if 12 it's not available, it's not available. 13 THE COURT: li~ell, for example, one of the 14 expeJ~ts, Milone, M I I, 0 N E! 15 l'1E. i'1ANNA: Right. 16 'I'HE COOR'r: --he's got his file, I assume. 17 That's Exhib~t 69. 18 MR. l'1ANNA: Yeah, I don 1 t have a problem wi·th 19 that, Judge. 20 'EHE: COURT: Scott Livingstbne file, Exhibit 49, 21 he's got :Lt. 22 lvJR. MANNA: Right. 23 'I'B.E COURT: Then Exhibit 7 is proposed drain 24 systr:'!m; Exh:i.bi t 31 is subdivision regulations; and the 25 rest, there are five, are photos. - 51 - (_.· ( .. · -Transcript of April27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. ll([a:r.:inacci.o vs Kieffer Ente:r.:pr.i..ses, Inc. 13 l Then under defendant's trial exhibits Robert 2 s·trell' s file, another expert, and then a I.ivingstone 3 letter. So I don't know; If they're missing, they 1 re 4 missing. 5 MR. MANNA: I agree, Judge. I agree with the 6 order. 7 TBE COUR1': I mean 8 MR. MANNA: Hey. 9 THE COURT: -- you've got about three-quarters 10 of a loaf hexe. 11 !11R. MANNA.: I agree wi·th what your re saytng, 12 Judge. 13 THE COURT: All right. 14 MR. HANNA.~ In terms if it's not available, it's 15 not ava.i.J.able. 16 ~18. MANCABE:LLI: I need to ·take one more slice 17 away from the loaf, your Honor. Those were analysis of 18 missing exhibits marked and received int.o evidence. When 19 Mr. Manna suggested we need every exhibit in evidence, you 20 do not have a copy of this e-mail, Mr. Glascott's office, 21 \vho supplied us with some of ·these that tve were putting 22 together over the last 36 hours, has confirmed that they 23 a.J.so do not have Exhibits 38, 36, and Kr<. And I can let 24 2S THE COURT: Are you saying -- are you saying - 52 - C .. · ffi (}) :5 c.· Transcript of April 27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. Marinaccio vs Kieffer E.nterpr:i.ses, Inc. 14 1 that all of ·these that I'm holding in my hand, the Milone 2 file, the Livingstone file, those exhibits are -- were in 3 evidence? 4 MS. MANCABELLI; Yes, your Honor. 5 THE COURT: And they're missing? 6 MS. fYJANCJ.\BEI..~LI: Yes, your Honor. 7 THE COUHT: Can 1 ·t get them? 8 MS. [viANCABELLI: I 1 m looking over to my right 9 here. 10 MR .. GLASCO'I"r: Judge, from memo.ry, I'm surprised 11 those are in evidence, actually. 12 THE COURT: So am I. 13 MR. GLASCOTT: I -- but stranger things have 14 happened. But, Judge, my recollection is, as your Honor 15 has suggested, the experts took all those files. We 16 certainly don't have those. We neve.r had ·those other than 17 handling them in court during· the trial. 18 COOH'I' REPORTER: ,Judge, Sally could pull that up 19 on her computer. I don't have mine's on another 20 computer, I can't look it up. Sally would have i't. She'd 21 know if those are in evidence or not. 22 THE COURT: We might have it. Let's juS't take a 23 look. 24 COURT CLERK: Wha·t year :i.s :i.t? 25 THE COURT: 2009. - 53 - r-··- ( .. : ... ( .. : Transcript of April27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. Marinaccio vs Kieffer Enterprises, Inc.· 15 1 COUH~[' RBPOR'rER: I think it might have been in 2 February. 3 MR. Ml-\NNA ~ There's ti>lo trials, so I don't know 4 what's in the computer. 5 'l'HE COURT: Well, I have some exhibits here tha·t 6 are dated in January. 7 MR. MANNA: What Ne did, Judge, is the exhibits 8 t:ha·t went into the first trial were a part of the second 9 trial sub:i ec·t to all of the objections that everybody had 10 in the first trial. So I believe we were working off of 11 the exhibit list f1:om trial number one. And if you look 12 at my papers, Judger the very las·t couple pages of the 13 last exhibit, this is 14 THE COURT: I have it. 15 MR. MANNA: -- I believe that that's the trial 16 exhibit list ·that we were working from in the August '09 17 trial, August, September '09. 18 THE COURT: Okay. 19 i'1R. tviANNl-\: And, Judge, if you look at it, my 20 memory is tha·t when you look at an exhibit and you see a 21 circle around the exhibit, that was the Clerk 1 s way of 22 demonstrating at the time that thai.: v1ent tn·to evidence 23 HR. GLASCO'l"r: Correct. 24 MR. tvlANNA: and then if there is no circle, 25 it was not admit·ted into evidence. - 54 - ,... .. \ .... c "' " w (1. ~· U) ffi ii: 0 u. IIJ rc ~ a: (/} 0 :;: g; "- . Transcript of April 27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. h1ad.naccio vs Kieffer Enterprises, Inc. 16 1 (Clerk printed out exhibit list.) 2 'l'HE: COURT: I have a list now of all the 3 exhibits and i-rhether or not they i'l7ere in evidence. For 4 example, the Nilone file, 69, it shoHs that it was not in 5 evidence. Exhibit 70 1 the proposed drain system, not in 6 evidence. Exhibit 31, the subdivision regulations, not in 7 evidence. Scott r.Jivingstone file, 49, not in evidence. 8 The photos, 204 through 208, not in evidence. 9 MR, GLASCOTT: Your Honor, that's all consistent 10 with the list we have here. 11 ll/fR. MANNA: Righ·t. 12 THE COURT: Mr. Strell's file, Exhibit WW, not 13 in evidence. And the Livingstone letter, Exhibit 0, not 14 in evidence. So none of them are in evidence, 15 MS. l'1ANCABEUJI: I apologize, your Honor. I'm 16 v.rorking off the support people helping me find them, so I 17 guess we're left in -- 18 THE COURT: You don't have to apologize. This 19 is a huge record. You know, I understand. 20 I'1S. MANCABELLI: Okay. 21 THE COURT: So we don't have to worry about 22 these. They're missing, but they're not in evidence, so 23 I'm not too concerned about them. And unless Mr. Manna 24 has some great objection here, they will not be included. 25 Okay? But the other ones will, and that's the way it's - 55 - ( ... ( ·. ·~·· c· .. Transcript of April27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. MF.!r.inaccio vs Kieffer Enterprises, Inc. J.7 1 got to be. 2 MS. MANCABELLI: Okay. 3 THE COURT: And then 1 of course, excluding the 4 EBTs. 5 !VIS. MANCABELLI: In consideration, your Honor, 6 with respect to the request for service of the record by 7 electronic means Friday because the printer was going to 8 have some issues getting them in? 9 I•iJR. MAl\TJ\JA: I don't -- if you can get me a hard 10 copy by Monday -- obviously I can't speak for the 11 Appellate Division, but if you can get me a hard copy by 12 Monday, that would suffice. You don't even have to send 13 me an electronic copy on Friday. 14 l\1S. MANCABELLI: Okay. 15 IYJR. tviANNA: Because I assume it >vill be late in 16 the day. I'll just wait for the hard copy. 17 HS. MANCABELLI: The printer has assured us they 18 have done that before on consent. 19 tviR. lviANNA: Okay. 20 MS. MANCABELLI: Okay? 21 THE COURT: Send him an electronic copy too. 22 MS. MANCABELLI: Will do, your Honor. 23 THE COURT: Next. That takes care of the first 24 issue, I think. 25 MS. MANCABELLI: It does, your Honor. - 56 - ( ( \__. ::. ll: 0 (1. (. "'····· Transcript of April 27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. Ma.:r:inaccio vs r1anna said in one case, Captain V. Ginsberg, that 19 specifically states that pleadings may be received for 20 evidence, but they are not evidence -- they are not -- 21 they don't have legal significance as a pleading. So 22 they're --they're evidentiary value as a notice issue, 23 your Honor, and that's the significance of them, your 24 Honor. 25 THE COUR1': You're saying notice to the - 58 - Transcript of April 27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. (. r· (_ __ · ~ l 2 3 4 5 6 7 8 9 J.O 11 12 13 14 15 -a-"---- - -:e 16 9 g "' 17 18 19 20 21 22 23 24 (.· ......... 25 Narinacc:i.o vs Kieffer Enterprises, Inc. 20 plaintiff of -- MS. MANCABELI,I: Of permission being an affirmative defense. THE COURT: Why is that significant? l!-18. L'1ANCABELLI: Easemen·t is permission. An easement is peLJttiss:i.on granted ·to use particular property for a particular use. In this case it was an easement for clraina9e. THE COUI<.'r: Oh, you mean it s.hould have st.:i.mulated him to go out and look for an easement? t-1S. MANCABELI,I: Not necessartly, your Honor, but it's record notice, and, uh, facts were developed, brought: to the Court as soon as they vlere available. We believe it 1 s a no·t:Lce issue ·tha·t should be at least decided by the Appellate Division, as opposed to ·this ·--.-- j 'lir1si:lictfon andtFiTs-Couic--·---·-- --·. ----·- ----··-··- THE COURT: M:r:. Manna? L'1E. MANNA.: I just -- I would stand on what I've already argued, Judge. The pleadings -- if it were put in as an exhibit, whether umnarh~d or in evidence or not in evidence, ·then maybe ·they got a point, but: none of these exhibits were -- or nons of these pleadings were. The jury never saw them. They were never marked. They•re all supeJ:seded by the Fourth Amended Complaint. My position is we got enough in there as it :Ls. - 59 - c·· (--. \.._ .. ., Transcript of April 27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. t!Jarinaccio vs Kieffer Enterprises, Inc. 21 1 THE: COURT: You mean to tell me you're going to 2 arque ·that 'lvithout any ·testimony having been given about 3 those pleadings, that is testimony from the plaintiff, that to the effect that he saw the pleading, that he 5 read it and all of that, ~>lithout any of thai: you want to 6 take use those as notice? 7 HS. MANCZ.\BEI,LI: With all due respect, you.r 8 Honor, it's not a question of whether tr1e jury savl ·these 9 pleadings. It's with respect to the Court's decision to 10 preclude evidence of the easement at trial. And I do need 11 to clarify, :t did represent to Mr. Manna that the parties 12 had stipulated with respect to no additional Answer being 13 requir~ld, that was at the first trial. 'l'here was no such 14 stipulation. \,1Je would -- we vmuld offer that a.t the very 15 minimum the Fourth Amended and the two Third Amended ---~----------[{)-- --·-·------Coinpia"J.nts-fr-6m-bot.l1-··parfies~--r£ we Ire going to be l:Gnited -- ~ . IS ; 17 to the issue of notice, we at least need to have ~t on the tJ s! :E. 18 record that there were two with the exact same language 19 reg~rding permission, but again, it's not a matter of what 20 the jury saw, what the jury didn't see, whether this has 21 legal significance, how many times did he get a pleading 22 that had that information in it? 23 HR. GLASCOT'l': ,Judge, may I be heard on this? I 24 didn't plan on having a speaking part, but I kind of (_ .. · 25 recall this during the trial. - 60 - c· Transcript of April 27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. ~larinaccio vs Kieffer Enterprises, Inc. 22 1 THE COURT: Go ahead. 2 l'-1R. GLASCOTT: Judge, as I recall the issue, the 3 issue at the ·time leading to the preclusion of the 4 easement was should it have been raised as an affirmative 5 defense, and there was briefs submi t·ted and argument made. 6 I don't recall the case law, I haven't researched it since 7 then, Judge, but if I may paraphrase it as bes·t my 8 recollection will serve, the issue, at least the position 9 the defense \•JaS raising was it was placed in controversy 10 by being pled and denied in some fashion in the form of 11 the pleadings it didn't have to be contained in an 12 affirmative defense, that it was placed in contro -- in 13 corYtroversy by the very nature of service of the Complaint 14 and service of the Answers. 15 That's a crucial part of what I suspect will be 16 the appeal, Judge, on -- on the preclusion of the 17 easement. For that reason, your Honor, we 1 re requesting lB that it be inc1uded in the Appellate record. ~rhat 1 s -- 19 it's not a notice issue for the jury, it's a notice issue 20 for the Court and plaintiff 1 s counsel that ·this is a 21 factual issue in dispute. 22 THE COURT: Yeah, I didn't look at it as a 23 notice issue for the jury. I was talking about a notice 24 issue for the plaintiff. 25 MR. GLASCOTT: Or I think, your Honor, just - 61 - ,... .. f. ' \::;; .. - "' UJ "' :5 Transcript of April 27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. Marinaccio vs K.i.ef fer Enterprises, Inc. 23 1 notice in terms of the pleadings, what facts are being 2 controverted here, and I think that's why the prior 3 pleadings, the prior Suwnons and Complaints and Answers 4 are relevant, because it did place that all important fact 5 at issue, not in the form of an affirmative defense, your 6 Honor, vJe know that, but it was placed into controversy. 7 l.\1R. JltlANNA: Judge, when -- when the easement 8 issue came up, and I'm sure you'll -- you'll recall, that 9 it "''as briefed, and everybody submit·ted what they 10 thought -- you gave us a day or a day and a half, and 1J. everybody submitted what they thought was important on 12 this issue, and we submit·ted briefs, and you decided on 13 on that information, which is all part of the record and 14 all part of the trial transcript. To now try to backfill 15 and say, oh, all these Complaints that have already been 16 superseded and -- and the Answers -- uh, you made a 17 decision, Judge, based upon information that you were 18 given at the time it happened. And at that time nobody 19 said, well, we need to give you all these pleadings too, 20 Judge. 21 [VJS. MANCABELLI: But that was absolutely raised 22 in the post trial motions, your Honor, vlhich is part of an 23 appealable decision which is part of the appeal of the 24 judgment. 25 THE COURT: I think what he's saying is, though 1 - 62 - c.··. ( -·· "~-.~· d tl ~ •< ffi n. it ., a: w ti: ~ n: n: Ul Ul ::1 0: U) tl ~ . Transcript of April 27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Pat1·icia A. Mancabelli, Dated August 3, 2011. Marina.ccio vs [{ief:fer Enterprises, Inc. 24 1 is that those pleadings were not raised in the mot:ions. 2 The in limine motion that was made regarding the easement 1 3 were those pleadings part of that? Was it -- did you 4 state as an argument, for example, that, gee, Judge, it's 5 in the -- it's in the Complaint -- or, I'm sorry it's in 6 the Answer that we've pleaded this permission? 7 HS. Ml\NCJ\BELLI~ With all due respect, if anyone 8 disagrees with me on the record, I've read it recently and 9 it was a one day session where Mr. Glascott came in and 10 said Mr. Kir~ffer found a letter, please come back tomorrow 11 morning. There were no papers. Your Honor ·took extensive 12 evidence, had a rmmbe.t: of Court Exhibits on the subject, 13 bu·t there were no papers. Was there arguments that there 14 ''Jere four ·three AnsvJers that specifically mentioned 15 permission? There was not. That was raised. They said 16 it was -- it either didn't have to be raised or it was 17 su:ffid.ently raised without reference to multiple 18 pleadings, but at the post trial motion stage, your Honor, 19 each of the pleadings were put in front of the Court for 20 consideration. 21 MR. ~1ANNA: Judge, we did -- we did submit 22 papers, Judge, not in the form that Miss Mancabelli might 23 ord.:Lnarily be accustomed to, but a bunch of the Cou:r:t 24. Exhibits, Com:t Exhibit 2, Court E:xhib:Lt 3, Court Exhib.it 25 4, Court Exhibit 5, and Court l'~xhibi·t 6, those were all - 63 - (,,. <6 ffi 0. 0~ (/) fli ,_ a: li: UJ cr a: IU s § ie 0 IL (" ...... Transcript of April27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. !-1ar ina ccio vs Kieffer r~nterprises 1 Inc. 25 1 exhibi-ts that were submitted to the Court in connection 2 with this whole easement issue· by both sides. Some were 3 submit·ted by the defense and some were submitted by the 4 pla:i.ntiff. So nobody at that time said heref Judge, look 5 at all these complaints and look at all these Ans\>Jers 6 concerning ·the easement defense -- the affirma·tive defense 7 of easement. So there vlasn' t -- 1r.re didn't have time to 8 bring formal motions. \.Ve brought vlith us what \ve though·t 9 was important for the Court ·to see. They \..rere marked as 10 Court Exhibits. 'l'he Cou:ct looked at them, thought about 11 it, made a decision. So none of these pleadings were part 12 of that decision. 13 'fHE COURT: You may include the Fourth Amended 14 Answer: -- excuse me -- t:he Fourth Amended Complaint and 15 the Third Amended Answer. 16 tliR. Ml\NNA: Judge, from which parties? From -- 17 from Kieffer or from Kieffer and ·the 'fovrn? 18 THS COURT: Well, what I'm looking for is -- 19 tviS. MANCi-\.BEI,LI: Would you like to reserve on 20 that until Ne argue the next point, which is the papers? 21 THE COUH'r: I ~-m, because that 1 s our next issue. My -- my 4 feeling is that all of those prior pleadings are a nullity 5 now. 6 As far as the issue of notice, the -- the -- the 7 Fourth Amended -- or the -- eKcuse me, the Fourth Amended 8 Comp1aint t;vas served long before the first trial, tvas it 9 not? 10 MS. MANCABELLI: No, your Honor. 11 MR. MANNA~ I don 1 t recall, Judge. I don r t 12 think so, no. I think it was served some time during the 13 -- during the second trial. I really don't remember vJhen, 14 could have been the beginning, could have been in the 15 middle. It was probably in the beginning, but I don't 16 remember. 17 THE COURT: Did anything change? As far as this 18 defense of permission, did anything change :Ln any of those 19 ansvJe.rs? 20 [vJS, r:JANCABELLI: No, your Honor. 21 THE COURT: They ~..,rere all the same? 22 MS. MANCABELLI: Yes. 23 THE COURT: 1'1y rul:Lng stands on that. 24 Okay. Let 1 s deal with ·the third issue, 1..,rbich is 25 the fact that Mr. Manna will not consent to any papers - 65 - ("·: • ... _,...-. f .... ~-·· C:... Transcript of April 27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. Marinaccio vs Kieffer Ent(~rprises, Inc. 27 1 submitted on behalf of the 'l'own ~ U'Jhy do you think you 2 should have those? 3 MS. MANCABELJ..,I: CPTJR 5526 indicates that the 4 papers and other exhibits upon which the order appealed 5 was founded should be included in the record. The only 6 basis -- we researched this, your Honor. The only basis 7 the case law suggests should be considered to exclude a 8 record is if a paper was not before ·the Court when making 9 the decision. You knov1, for example, vli th posttrial 10 motion for relief, I understand that there's a memorandum 11 decision that separates out a decision for the Town and a 12 decision for. Kieffer; and if they had been separated on 13 t\·10 different months, where the Court considered only one 14 set of papers and ruled on one of the parties, and another 15 set of papers a month later and ruled on another set, 16 there would be a better argument for Hr. Manna, but these 17 -- ·these issues were so intertwined and considered by the 18 Court :i.n conjunction all the papers before the Cour·t 19 \vhich would permit the Fourth Department to make an 20 assessment of what was and was not before the Court would 21 have to include all the papers in front of the Court, 22 whether it was for one particular party or another. I 23 find no case law, and Mr. Manna bas not cited any, I 24 understand this has been a short turnaround, but there's 25 no case law suggesting exclusion of a paper based on which - 66 - c.· /" l.. -<'l ! (-.--' ....... Transcript of April 27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Pat1·icia A. Mancabelli, Dated August 3, 2011. Marinaccio vs Kieffer Enterprises, Inc. 28 1 party submitted it to the trial court. 2 THE COURT: Mr. Manna? 3 MR. MANlifA: Judge, my position is quite simple. 4 'itfe' ve settled \>lith the 1'own of Clarence. The Court looked 5 at these issues at the same time, but issued a decision, a 6 memorandum decision, one of which is entirely addressed to 7 the 'rmm of Clarence, which they t"ant to have in their 8 papers for reasons I don't understand at all. And then 9 the second memorandum decision, both on the same day, 10 Judge, that's why I'm not using dates, actually breaks out 11 this is my decision as to the Town of Clarence mo·tions, 12 this is my decision as to -- as to Kieffer Enterprises' 13 motions. So the decision breaks out what -- uh, why the 14 Court is doing vlhat it's doing. And certainly your Honor 15 is more ·than capable of figuring ou·t what papers were 16 looked at for what issues. And the Court decided the 17 issues, although at the same time, independently. And the 18 proof is in the pudding, which is the memorandum 19 decisions. The Court didn't put it all ·together and, uh, 20 kind of discuss these issues all globally. And they're 21 trying, again, Judge, to backfill with additional facts 22 used on the record on appeal to help Kieffer, that Kieffer 23 didn't -- may not have put in front of your Honor when 24 Kieffer argued its motions for posttrial relief. So 25 they're -- they're trying to take -- they're trying to get - 67 - c:. C.. .. Transcript of April27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. Marinaccio vs Kieffer Enterprises, !nc. 29 1 the benefit of arguments and facts and things that were 2 put in on behalf of the Tovm in order to help Kieffer, and 3 that's not the -- that's not the purpose of --of the 4 record on appeal. The only issue on appeal right now is 5 t-.rhat is the -- is the punitive damages issue, and we don't 6 even have an agreement as to what exactly that means. So, 7 I don 1 t think thai: we ought to be having record from 8 papers from the Town of Clarence on their post trial 9 motions smnehovl helping Kieffer, when I-vant to make sure that -- 1:hat the Appella\:e Division has 13 everything on which my decision vras based . 14 [viR. NANNA: Judge, right now we ' re speaking 15 about pos·tt:dal motions, correc·t? Because ·there 1 s some 16 other papers of the Town that they're trying to put in 17 that I have a problem vdth as well, more specific ones. 18 So when you look at Miss Mancabe.lli's e-mail 19 here of Apd.l 26th, there 1 s the posttrial motion issue and 20 all those papers, which I understand the Court just ruled 21 on, but :Ln addition, Judge, there's a motion in limine 22 that in my humble view Ki~:-,ffer' s trying to bootstrap that 23 the To~tm rnade, and then ·there • s also a motion to dismiss 24 that the Town made back in 2008 ·that they're trying to , 25 boot.strap. So I ,,mulct like to at least separab~ly address - 69 - 8 0 U- :'E .. c: '··· ~ Transcript of April 27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. !Vlari.nacc:Lo vs Kieffer Enterp.r:lses, Inc. 31 1 those issues; and if the ruling is the same, i·t' s the 2 same, but Pd like to be heard on those. 3 THE COOR'r: Okay. So I've ruled. on the 4 posttrial motions. Let's deal with the other issues. 5 Miss lV.Iancabelli, let's deal with the motions in 6 lim:i.ne. 7 MS. HANCl\BELLI: Sure. Quick clarlficaU.on for 8 the record, your Honor. You referred to the Town's last 9 submit:ted Complaint, It should be the Tm-m' s last amended 10 Ans-v1er. 11 THE COURT: I agree. My mistake. 'rhe last 12 Amended. 1\nswer:. 13 MS. [vfANCABELLI: I like clean records wherever I 14 can get them, your Honor. 15 T£1.11-: COtJR'r: I agree. That's your job. 16 IYIS. ;vJANCABET,JJI: Okay. Motions in limine. It 17 was actually J.Vl.r.. Manna's Motion in limine to preclude 18 expert testimony by Mr. Klauck, vvhic.h the Tovm lost. And now, having 15 settled 01.1t, the issue about whether it v1as correct or not 16 correct to refuse to grant a motion dismissing the 17 Complaint based on the statute of limitations, that was 18 something again owned by the Town, not by Kieffer. The 19 statute of limitations as to Kieffer was different, is 20 different, and Kieffer didn't join in that motion, and 21 Kieffer didn't even take a position on this motion to 22 dismlss. And they think there's some favorable 23 information in there that they want to use up on appeal, 24 and I'm saying that it's not part of the record because it 25 had nothing to do with Kieffer Enterprises. - 72 - c· (~·~- . • -=..:• 8 ci IL :E c· t.._ ,. Transcript of April 27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. 1:>1iuinaccio vs Kieffer gnter.prises, Inc. 34 1 THE COURT: Okay. Miss Mancabelli, on tha:t 2 issue? 3 MS. MANCABELLI: Your Honor 1 with respect to the 4 mo·tion to dismiss, the parties agreed that rulings by 5 Judge Makowski would be going forward with the second 6 trial. This is one such ruling. It's important to have 7 it as part of the record. There are representations made 8 by by plaintiff in an affidavit that this court should 9 be able to see as a representation about i.Yhether or not 10 there was permission granted. There's a representation he 11 made long before, it's relevant to the preclusion of the 12 easement, and i·t•s something we believe tha·t the Fourth 13 Department should see to see the full record. 14 THE COURT: And on the motion in limine i..ras that 15 issue raised? 16 MS. MruqcABELLI: Was? 17 THE COUR'r: The statute of limitations affidavit 18 submitted by the plaintiff, were those raised, or is that 19 something nev.J nmr? 20 MS. MANCABELLI: Not raised that day when people 21 stood here in court, not given to the Court as a Court 22 Exhibit, but raised in posttrial motions, your Honor. 23 THE COURT: Well, you see -- you see the problem 24 is it's like give me all your evidence, I want to decide 25 this motion; so I get all the evidence, I decide the - 73 - c::. Transcript of April 27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Marinaccio vs Kieffer. Enterpri.ses, Inc. 35 motion, and ·then you say wait a minute, you didn't consider a certain piece of evidence. Now vle didn't tell you about it, Judge, but '\ve want you to change the result even ·though Ne didn't telJ. you about that piece of evidence, and we want to go up on appeal on a piece of evidence that we never gave you. MS. MANCABELLI: Mr. Glascott.repeatedly requested more time, your Honor, to be able to do discovery, a proper discovery on ·this easement issue, and that was denied. THE COUI~T: Statute of limita·tions motion the answer is no. Okay. Area number four, I think. MR. MANNA: I think we must have just covered those, Judge. tvJS. rvJANCABELLI: That was number four. There are also some additions, I don't know if they're on here, perhaps at the very bottom, request by Mr. Manna to add to the record. THE COURT: Okay. MR. MANNA: The first THE COURT: What's left? MR. MANNl\: \~'Jell, Judge, there was a Notice to Admit that I served early on in the case; and if you recall from the post trial motions, there v.,ras all this - 74 - "' u·· uJ a. ({: ffi ,_ ~ Ul o; C ... : Transcript of April27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. Marinaccio vs !...re 4 'dould ask that the Town r s request to charge ·the jury be 5 included as welL All three were included, the charges 6 \\Tere considered. And in fact, at 1714 -- transcript page 7 1714 of the second trial Mr; Perley objected to the jury 8 instructions to the extent they didn 1 t conform to his 9 request to charge, and Mr. Glascot·t joined in that 10 objection, your Honor. 11 'I'HI~ COUR'l': 'J~hat it didn't? 12 ~;JS. MANCABE:I~L I: I -- I know the ques·tion you 1 re 13 about to ask, and it's not clear on the record, your 14 Honor. 15 THE COURT: Not clear on the record. 16 f\1S. MANCABELLI: So erring on ·the side of l7 caution. 18 MR. MANNA: That 1 s fine, ,Judge, I don't have an 19 objection if we want to put the Town's in. 20 THE COUR'I': Okay. Put them all in. 21 l-\nythi.ng else? 22 MR. MANNA: I -- 23 THE: COURT: Tell you what, counsel, I'm going to 24 be here tomorrow, may be starting a trial or a ju.ry 25 selection, I don't know, or maybe not, what I vmuJ.d - 79 - c.:. g ~~ ~~ •0 a: UJ 0. 1E Ill ffi ~ a: (_.·. Transcript of April 27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. Marinaccio vs Kieffer Enterprises, Inc. 41 1 appreciate if you would do is as you start delving through 2 3 4 5 6 7 B 9 10 11 12 :1.3 15 16 18 19 20 21 22 23 24 25 this, :i.f you run into a problem1 would you just send an e-mail to Amy and try to deal with it that 1vay? She can come to me and I -- I may be able to get you answer '1-d.thout you having to come in or without doing any more paperwork. I think considering the press of ·time you're going to have to do it that way. IYTS. MANCABgLLI: Thank you, your Honor. MR. l'1ANNA: 'rhanks r Judge. 'l'HF. COURT: Okay? I think ·that's it. We're adjourned. 1'-1R. MANNA: Thank you, Judge. (2:55p.m. recess.) * * * ·k * I hereby certify that the foregoing is a true and accurate transcript of the proceedings held in the matter of Paul LvJar.i11accio, Sr., Plaintiff, vs Town of Clarence, KLeffer F.nterpr.ises, Inc., Defendants. ~ )'71~ Marcia tv!. J.,anger .~..r(n/o Sr. Court Reporter - 80 - Transcript of April 27, 2011 Show Cause Hearing on Motion to Settle Record, with Affirmation of Patricia A. Mancabelli, Dated August 3, 2011. STATE OF NEW YORK SUPREME COURT : COUNTY OF ERlE PAUL MARINACCIO, SR., PLaintiff vs. TOWN OF CLARENCE, KIEFFER ENTERPRISES, INC., Defendants AFFIRMATION OF COMPLIANCE WITH CPLR 5525(c) Index No.: I 2006-006978 Hon. Frederick J. Marshall, J.S.C. The undersigned, Patricia A. Mancabelli, Esq., attorney for defendant-appellant Kieffer Enterprises, Inc. (''Kieffer") in the above-entitled action does hereby certify and affirm under the penalties of perjury that she has complied with the time limitation of CPLR 5525( c )(1 ), in the service of a copy of the transcript of the April 27, 2007 Show Cause Hearing on Kieffer's motion to settle record, and proposed amendments, that she has served upon plaintiff-respondent herein the notice of settlement required by CPLR 552S(c)(3), and that plaintiff-respondent has failed to propose amendments or objections within the time prescribed by CPLR 5525(c)(l). Dated: August 3, 2011 Respectfully submitted, Doell 01·2497308,1 EXHIBITB TO REPLY BRIEF - 81 - STATEOFNEWYORK: SUPREMECOURT APPELLATE DIVISION : FOURTH DEPARTMENT PAUL MARINACCIO, SR., Plaintiff-Respondent, v. TOWN OF CLARENCE, Defendant, and KIEFFER ENTERPRISES, INC., AFFIRMATION OF PATRICIA A. MANCABELLI Index No.: I-2006-6978 Docket No.: CA 10-00292 7l .... '1Jo r......::;~ ~ ~.:.:_~_: :~: , . ., .. ..,..,_~, Defendant-Appellant. ~ ") :;·: ~ ·- -·~i ·~ 8 ' ' ••• I -._j ·-· . ·--··: . ''1 ,. PATRICIA A. MANCABELLI, affirms under the penalty of perjury;:that the. · following is true: I. I am an attorney admitted to practice in the State of New York. I am associated with the law firm Phillips Lytle LLP, attorneys for Defendant-Appellant Kieffer Enterprises, Inc. ("Kieffer"). As such I am fully familiar with the facts herein. I make this affirmation in opposition to plaintiff's motion to dismiss Kieffer's appeal and his motions to strike Kieffer's briefs, or portions of Kieffer's briefs. 2. Plaintiffs motion is returnable on October 11, 2011. The primary appeal is scheduled for oral argument on October 19, 2011, as is Kieffer's appeal (CA 11-01638) of the order settling the record in the primary appeal. 3. On its primary appeal, Kieffer seeks reversal of a jury award of $250,000 in punitive dan1ages. The verdict was based upon the temporary drainage of storm water by co- defendant Town of Clarence ("Town") from roads and through sewers owned by the To~ (and - 82 - previously owned by Kieffer) into a drainage ditch on plaintiff's vacant land. The subject ditch had been used for many years, before and after plaintiffs acquisition of the land, to drain water from the surrounding properties via an easement granted to the Town in 1966 by plaintiff's predecessor. Kieffer Properly Submitted All Printed Exhibits to the Court 4. Plaintiff argues incorrectly that Kieffer failed to timely perfect, and that the primary appeal should be dismissed, because Kieffer did not submit original exhibits to the Court. Plaintiff, however, identifies no original exhibit that Kieffer should have submitted. 5. Also, 22 NYCRR § 1000.4(g)(2) provides that all trial exhibits that can be printed are to be printed and filed with the Court as part of the record on appeal. As to trial exhibits that cannot be printed (e.g., an allegedly defective product), they are considered "original exhibits" which, absent stipulation, are to be submitted directly to the Court. See 22 I NYCRR § 1 000.4(g)(3). 6. Here, the order settling the record on appeal listed only printed trial exhibits and, therefore, required filing of only printed exhibits with the Court. See R. 7441-50, attached as Exhibit H to the Affidavit of Joseph J. Manna, sworn to September 30, 2011 ("Manna Aff."). The majority of the exhibits were standard size and were, therefore, printed in the record on appeal, precisely as 22 NYCRR 1000.4(g)(2) requires. Affidavit of Service dated April 29, 2011, attached hereto as Exhibit A. As to oversized printed exhibits, those too were filed with the Court, along with the printed record precisely as 22 NYCRR 1 000.4(g)(2) requires. 7. Plaintiff's motion to dismiss for failure to file original non-printed exhibits that do not exist should, therefore, be denied. 2 - 83 - Kieffer Did Not Initially Submit a Survey Because Plaintiff's Counsel Agreed To Do So 8. Plaintiff asserts that the primary appeal should be dismissed because Kieffer failed to add a document to the record. Plaintiff is incon-ect. 9. In truth, plaintiff's counsel expressly agreed to place the document into the record, but never did so. 10. Kieffer perfected this appeal on April 29, 2011. See Exhibit A. Three months later, on July 21, 2011, plaintiff's counsel advised that a survey was missing from the record. 11. The survey is an enclosure (the "Casilio Enclosure") to a letter dated April24, 1995, from former Clarence Town Attorney William J. Casilio to Attorney Anthony Cardarelli. R. 4950-4950a, attached hereto as Exhibit B. 12. On July 21, 2011, plaintiff's counsel discussed with me his options for adding the survey to the record. He suggested that he either attach the survey to his appellate brief or submit a stipulation to the trial court. When plaintiffs counsel identified the survey to which he was refen-ing and the transcript cite, I agreed that Kieffer would stipulate to including the Casilio Enclosure in the record. See emails dated July 28 to August 3, 2011, attached to the Manna Aff. as Exhibits J, K and L. 13. Plaintiff's counsel, however, never forwarded a stipulation to me so I assumed he would attach the Casilio Enclosure to his brief. He failed to do that as well and now unfairly accuses Kieffer of failing to include the document in the record .. 14. Plaintiff has fabricated this issue even though there has never been a dispute about the includability of the Casilio Enclosure in the record. Had plaintiff simply done 3 - 84 - what he agreed to do or requested my further cooperation rather than bring this unnecessary motion, he or I could simply have forwarded the Casilio Enclosure to the Court. In fact, upon receipt of plaintiff's motion to dismiss, I requested that the Court designate the Casilio Enclosure as Supplemental Record ("SR") 1, R. 4950a. See letter dated October 4, 2011, attached as Exhibit C. 15. Plaintiff's motion to dismiss, therefore, should be denied. Plaintiff Misunderstands Kieffer's Argument That Plaintiff Failed to Seek Inclusion of an Exhibit In The Record on Appeal 16. Plaintiff seeks to strike portions of Kieffer's reply brief based upon his misunderstanding of an argument in that brief. Contrary to plaintiff's argument, Kieffer correctly asserted in its reply brief that plaintiff failed to include a survey - not the Casilio Enclosure -in the trial record. See Reply Brief at 3-4. 17. Specifically, plaintiff submitted two letters and the Casilio Enclosure to the trial court (R. 142), which were collectively marked as Court Exhibit 4. R. 4949-4950a, attached hereto as Exhibit D. The first letter, dated March 2, 1995, is from Mr. Cardarelli to former Town Attorney Casilio. Id. The second letter is Mr. Casilio's response. Id. 18. In the first letter, Mr. Cardarelli states that he enclosed "the easement" and "a survey," and asked the Town to release the easement or plot it on the survey. R. 4950. Plaintiff, however, did not submit either the "easement" or the "survey" (not the Casilio Enclosure) to the trial court and, therefore, they were not made part of the trial record. 19. Kieffer accurately points out in its reply brief that these documents, not the Casilio Enclosure, should have been, but were not made part of the trial record and, therefore, not part of the record on appeal. See Reply Brief at 3-4. 4 - 85 - 20. Plaintiff's incorrect assertion that Kieffer stated that the Casilio Enclosure was not in the record on appeal is directly contradicted by Kieffer's reply brief itself. There, Kieffer clearly states that the Casilio Enclosure (aka the Charles E. Denver, Survey Print, SR 1, R. 4950a) is part ofthe record on appeal: Finally, the letter from Mr. Casilio to Mr. Cardarelli, dated April 24, 1995, purports to enclose a "Charles E. Denver, Survey Print." R. 4950. However, the only Charles E. Denver survey in the Record is dated September 16, 1989 with a revision dated September 28, 1989 and a "RE-SURVEYED" date of April 12, 1994. All of these dates precede the 1995 · Casilio-Cardarelli letters. Accordingly, if the former Town Attorney plotted the easement on a map per a request made in 1995, that document is not in the Record either. Reply Brief at 4. 21. Plaintiffs motion to strike portions of Kieffer's reply brief based on plaintiff's misunderstanding of arguments about the Casilio Enclosure should, therefore, be denied. Kieffer's Briefs Do Not Contain Unjustified Criticisms of Plaintiff or Plaintiff's Counsel 22. Plaintiff next argues that Kieffer's briefs should be struck because Kieffer identified ~ number of inaccurate, inappropriate and highly prejudicial statements knowingly made by plaintiff and his counsel to the jury. 23. Each statement referenced by Kieffer and to which plaintiff objects is included in the record on appeal. 24. Specifically, plaintiff and his counsel repeatedly told the jury that no easement existed. Plaintiff's counsel argued in closing that defendants never addressed the absence of an easement at trial, even though he had been ordered not to mention the easement and lmew Kieffer had been barred from addressing that issue. The impropriety of those 5 - 86 - statements is a significant issue in the primary appeal and Kieffer has every right to raise them. The cases cited by plaintiff in support of his motion to strike Kieffer's briefs (see Plaintiff's Memorandum of Law dated September 30, 2011, at 7-8), concern unwarranted accusations unsupported by the record and, therefore, have no application here. 25. As Kieffer argues in the primary appeal, preclusion of the easement was one of the critical errors that led to the jury's punitive damages award against Kieffer. If the jury had been allowed to hear that the Town had an enforceable right to drain water into the ditch on plaintiff's land, it could not have found Mr. Kieffer to have acted maliciously or with near criminal intent when the Town exercised that right. See Kieffer's Brief at 21-22. 26. Plaintiff's and plaintiff's counsel's inaccurate testimony and inflammatory statements to the jury that no easement existed and that Kieffer failed to address that issue significantly compounded the prejudice to Kieffer. 27. Plaintiff's argument that his and his counsel's conduct was proper because the trial judge never ruled that an easement existed is not credible. There is simply no question that an easement exists or that plaintiff knew it existed. Moreover, the trial court specifically admonished "all counsel" and all witnesses to make "no mention" of "the easement" under threat of "dire consequences." R. 169-70 (emphasis added). Obviously, the trial court recognized, as had plaintiff's counsel, that the easement existed. 28. Kieffer has properly challenged the propriety of plaintiff's and his attorney's statements to the jury. It is not, therefore, a proper subject of a motion to strike and plaintiff's motion should be denied. WHEREFORE, Kieffer respectfully requests that plaintiff's motions be denied in their entirety. 6 - 87 - Dated: October 7, 2011 Doc# 01-2520608.3 7 EXHIBIT A - 89 - I AFFIDAVIT OF SERVICE ~· . ' CA 10-00292 State ofNew York ) County of Genesee ) ss: Town of Stafford ) I, Suzanne M. Duyssen, .being duly sworn, say: PAUL MARINACCIO, SR. vs. TOWN OF CLARENCE and KIEFFER ENTERPR1SES, INC. 1.) that I am over eigllteen years of age and an employee of Batavia Legal Printing, Inc., LeRoy, New York, 2.) that on the 291h day of APRIL , 2011, our company delivered/mailed copies of: 12 Record on Appeal 13 ·Brief for Appellant(s) in the above case, in a sealed, postpaid wrapper, to: Number of Copies: 10 +Original ofRecord: I 0 + Original of Brief . +Exhibits +Orders +Filing Fee DELIVERED 1 Copy of Record: 2 Copies of Brief + Oversized Exhibits +CD FIRST CLASS MAIL Addresses: PATR1CIA L. MORGAN, CLERK Appellate Division Fourth Department 50 East Avenue Rochester, NewY.ork 14604 LIPSITZ GREEN SCIME CAMBRIALLP Joseph J. Manna, Esq. 42 Delaware Avenue, Suite 120 Buffalo, New York 14202 At the First Class Post Office In Stafford, New York. The Packag.e(s) was/were mailed at/about 4:00P.M. on said date at'the request of: PHJLLIPS LYTLE LLP Michael B. Powers, Esq. Patricia A. Mancabelli, Esq. Appellate Counsel to Defendant-Appellant Kieffer Enterprises, Inc. 3400 HSBC Center Buffalo, New York 14203 GQ~DBERGSEGALLALLP Dennis P. Gl!!Scott, Esq. Attorneys for Defendant-Appellanp Kieffer Enterprises, Inc. 66? Main Street, Sl.'!ite 400 Buffalo, New York 14203 ~ Y\ is. 2_q&dayof~U1J~· ri-=-L _,2011 . DANIELLE R. DuBOIS NotarY' Publfc, State of New York )i· Qualified In Genesee County · · Commission Expires Nov. 06, 29 .ll1. EXHIBIT B - 91 - 4950 Court Exhibit 4. TOWN O·F CLARENCE ONE TOWN PlACE • Ct.ARENCE.NEWYORK 14031 • TEL 741-280Z Anthony Cardarelli Attorney at La.w .144 Woodgate CheektowaAa. New York 14227 Re: Property on Lapp Road .- CJ.arellCe, New York Dear Mr. Cardarelli: Apri.l 24, 1.995 Wlt.l.1AM J. CASillO TOWN A1TORNEY As per your request~ enclosed her-ewith pl~ease find one Charles E* Denver 1 Survey Prin~. WJC/sc . Jl"ll"f:.'t .• ~:~~~!I<)·:.~~,:~~··~'•'''··!·B11~ ···!·-~·<\' ·• .. ~\'':~·&~:"":'! ·<:"ll'~l ;~.,~::~·.' •. ~. ·'· . . ... Yo~~:~· ~~~ WIL~IAM J. GASlLIO, ESQ. Town Attorney EXHIBIT B - 92 - vUI.LO. LVII I~J:JfiYI rt',.!fot .:c ,4o<'.r,:;- .. ~.::'P l ~ ~ ·~ ~ ~ ~ ~ ~ ~ ..... ~~ ~ ~1 ~\ll ~- al': ~~(!} ~ -~ ~ ~~·~-· _,_ ,,...._.) ~ li .. ~ ill~ ij ~ ~ ~~~ ' ~ -~~ 'l'- t~ :i\1 < I' HAR E"DEN\fgi!l l1Cel9ED U~O SUJ:l\1&-YOI!r N;r.a t.fc~~ae oo • .sw~e~ E5fiS MAJN-sTAES' 'WlWAMSV!tLP., t>!.V.14221 IW, lULL r • t. ,:. EXHIBIT C - 93 - Phillips lytle LLP VIA FEDERAL EXPRESS Patricia L. Morgan, Clerk of the Court Appellate Division, Supreme Court Fourth Judicial Department 50 East A venue, Suite 200 Rochester, New York 14604 Re: Marinaccio v. Town of Clarence, et al. Erie County Index No.: I-2006-6978 Docket No. CA 10-00292 Dear Ms. Morgan: October 4, 2011 Counsel for plaintiff-respondent has brought to our attention that a survey that should be part of the record in the above-reference appeal was omitted. That omission was inadvertent. Please supplement the record with the enclosed survey, SR 1. It should appear in the record as R 41350 a, immediately following R 4950. Thank you for your assistance. Very truly yours, ____ Phillips Lytle LLP .. By ~ oif/.iut; . ( Ynwn {vJ;tl,' Patricia A. Mancabelli PAMkml4 Doc# 01-2519942.1 Enclosure cc: JosephJ. Manna, Esq. Dennis P. Glascott, Esq. Patricia A. Mancabelli Direct 716 504 5777 pmancabelli@phillipslytle.com ATTORNEYS AT LAW 3400 HSBC CENTER BUFFAL.o, NY 14203·2887 PHONE 716 847 8400 FAX 716 852 6100 BUFFALO ALBANY CHAUTAUQUA GARDEN CITY NEW YORK ROCHESTER WWW.PHILLIPSLYTLE.COM EXHIBIT C - 94 - SR 1 (4950a) '..JUI.LO. LVII I;J:JfiYI .-rrun • 11.!1'11 ~l .. ' ,. 'l ....... · .. t ' ..... , .. ~.,.......,._ .... . • t I td Clf' L..-<1..=""""' ~.:::r,...:=> ~ • H'~ Jf HDA';o""f ~/N'& Q!'" Ld;.-4. 1 ... VAct~.v.r ~uP I 4f?,St:Jtz~.rs .. HAR E,_DENVER ttCEtlSED UNO SUA\f&VO~ N;r.a LfC~SE N0.$~6~ 85£!6 MA!N.srAE5T Wl:WAMSVIU..~, N. Y.14221 lJH'ON~ f71fil R~lf,J;?~ 110, LULL r. L EXHIBIT D - 95 - 4949 Court Exhibit 4. Antonio Cardarelli, Esq. Attorney at Law ( /b ~0 )( 144 Woodqate Drive cheektowaga, New York 14227 (716) 668-3416 ·. William J. casil'io, Esq. clarence Town Attornay B899 Main Street Williamsville, NY 14221 Re: a 8 7 7 Lapp Roa.d, Clarence, N:l · rona Builders, Inc. oear Mr. casilio: COURTS~:·· t; ... . EXBIBrt:.~·· 7 ~~~.: ... March 2, 1995 As per our telephone oonversa~ion earlier this week, enclosed is a copy of the Town of Clarence's Right~of-Way and easement over and upon B.877 Lapp Road together with a copy of the survey of the property in question. '.!?he property is baing: transferred and we ask that the Town either release its interest or plot the same on tha survey. Thank you for your . help in. this matter. If· there is anythinq more you need us to do to help clear up this matter.. please1 do not hesitate to call. sincerely, ~ ~ ~ntonio cardar~lli Ena .. EXHIBIT D - 96 - ..... 4950 Court Exhibit 4. TOWN OF CLARENCE ONE TOWN PLACE • CLARENCE. NEW YORK 14031 - 1'EL 741-~802 Anthony Cardarelli Attorney at La.w .144 Woodgate Cheektowata. New York 14227 Re: Property on Lapp Roed .- Claretu:::f.l t New York Dear Mr~ Cardarelli: April 24, 1.995 WltttANt J. CASillO iOWN ATrORNEY As lH"r your request t enclosed her-ewith pl~ease find one Charles EN Denver~ Survey Prin~. WJC/sc Yo~r: t~· ~~~ WILLIAM J. GASILIO, ESQ. 'fow11 Attorney }h~_f:."! •-~:';'~~;,}-t)'~~-:;·~~,~.!-r.,.,.,,~•E1t~s .~!t .. t!~-:t.··,;.~ ~~~t-~~9i:~ "'<:S;j.t\.~ lttA::~~ i ... ~- -... .!t. .. ~ ~ ... . \ EXHIBIT D - 97 - I ~· J ., . ,. '. ,· SR 1 (4950a) Court Exhibit 4. L 1 ~ ;.~...;.\.:',~.\1 ~ e.~Lo.~J me c.: vtlm_~ r .' ~7 1::s:; es:a5Pf1 P2 llOTliJt11i:o~VCf~rt\at,/>!'!l>ti\tll:IOT'!lil:;~!lil:mrii! , Ill! ~ltv.CI tlr IIJI.I!.qal lli ll'.lil.l"..llflD IXC~ ~r.~aJ:«m'rUCtue~EU~I.'Jlll;t.llJl!li.Wl!• Ill'~ , ... ~.·~··" •'• ' flf ~ L.-'l.,.e:;>'.,.e:>' ;.r;?c,..,_.:;;> .C::::~'//..ka .? H~'f ..1'/u.&- ,p,r Ld-:r& J • : VA.:t.rt.v.r .c:.;u.t::>" I -;/(:J,.Sc/ .r Ac><.r."F '• . ~· HARlJ.ES E,,JlEN\FER tlr!"ElJSEI.) UNO .SU~\1'~011' N;v.S. t.!CeW3~ 00.-®~6;1 E5Bo tllitlJI"-.!SfAEIST WIWA.MSV!t:J~P., N. Y.1422i DHONE ~l'!fi.\ R3il .. mAA nu. t.Ut.L r. L l•