United Realty Advisors, LP v. Verschleiser

UNITED REALTY ADVISORS, LP, JACOB FRYDMAN, ET AL., Plaintiffs, v. ELI VERSCHLEISER, ET AL., Defendants.

14-cv-5903(JGK)

14-cv-8084(JGK)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

October 3, 2019

MEMORANDUM OPINION AND ORDER

JOHN G. KOELTL, District Judge:

The defendants have made various motions in limine. This opinion disposes of all the motions in limine made by the defendants.

I.

The plaintiffs ask the Court to strike the defendants' witness list because it was produced two weeks after the May 14, 2018 deadline for the submission of the Joint Pre-Trial Order. Presumably, that would mean that the defendants are precluded from calling any witnesses because they were two weeks late in producing a witness list over a year ago and nearly a year and a half before the case reasonably could be tried. The plaintiffs have not indicated that they were prejudiced in any way by the two-week delay in producing the witness list. See Lujan v. Cabana Mgmt., Inc., 284 F.R.D. 50, 68 (E.D.N.Y. 2012) ("An omission or delay in disclosure is harmless where there is an absence of prejudice to the offended party.") (quotations omitted). The argument, to put it charitably, has no merit. The request is denied.

II.

A.

The defendants move to preclude the plaintiffs from offering at trial any documents that were not produced in the course of discovery or that were produced in illegible form. It is unclear precisely what documents the defendants are referring to, and the plaintiffs profess that they have produced to the defense all of the documents that they propose to introduce and that they produced those documents to the defendants promptly. For example, they point to a videotape from Caesar's Palace and a September 15, 2014 incident report that were produced promptly to the defendants after the plaintiffs received them. There is no reason to question those representations. There may be other evidentiary obstacles to introducing that evidence at trial and the plaintiffs will be required to lay the proper evidentiary foundation for the evidence at trial if the documents are not stipulated admissible. With respect to this motion, there is no objection to the principle that the plaintiffs should not be permitted to offer any evidence at trial that was not produced to the defendants in the course of discovery in a legible form like that proposed to be offered at trial. There is in fact no dispute as to that well-established proposition. See Fed. R.Civ. P. 37(c)(1). Therefore, the motion in limine is denied without prejudice as moot.

B.

The defendants move to preclude the introduction of a recording and/or a transcript of a telephone conversation between Gould, an employee of Cabot Lodge Securities, and defendant Verschleiser. The plaintiffs have produced an alleged transcript of that telephone conversation but have never produced the recording.

At his deposition, Gould testified that he made a recording of the conversation and gave a copy of the recording to Frydman or his attorneys, he could not recall which. Thereafter, he destroyed the original of the recording. The defendants argue that the transcript should not be admitted into evidence for a raft of reasons including that it is unauthenticated, that it is hearsay, and that the destruction of the original recording was in violation of the Federal Rules of Civil Procedure and the Code of Ethics that binds lawyers. In response to the motion, the plaintiffs argue that the motion is unnecessary because Gould will testify at trial and therefore the transcript will be unnecessary. Therefore, the plaintiffs argue: "This motion is an unnecessary waste of this Court's limited resources." Opp. At 8. That is not true. As a result of the motion, the transcript isprecluded from being introduced into evidence. That specific relief is not contested and is the only relief currently sought.

In a footnote, the plaintiffs blithely note that "[t]he transcript was created in the regular course of business and the original recording has not been destroyed." Opp. at 9, n. 2. That cannot be right. Gould testified that he deleted the original recording. The copy of the recording was at most the copy that was used to create the transcript. It is also difficult to believe that the transcript of the recording was made in the regular course of business rather than for purposes of litigation. But, in any event, it is clear that the transcript must be precluded from evidence.

Nevertheless, that leaves certain unanswered questions. How could the plaintiffs represent to the Court that the original recording "has not been destroyed," and that the transcript was "created in the regular course of business." Therefore, within 14 days, the plaintiffs shall submit affidavits sufficient to establish the accuracy of the representations that the "original recording has not been destroyed" and that the transcript was "created in the regular course of business." If there is a recording - even a copy - arrangements should be made to provide a copy to the defendants within the same fourteen-day period together with an affidavit explaining the provenance of the recording. These procedures inno way detract from the order precluding the plaintiffs from introducing the transcript at trial but could be the basis for further applications to the Court.

C.

The defendants move to preclude the plaintiffs from mentioning, in the course of the trial, any prior arrests, criminal convictions, or drug history of any of the defendants. The defendants point out that these types of allegations have been included in the complaint and were the subject of examination at depositions. Somewhat remarkably, the plaintiffs say that the motion is premature and can be decided at trial, and point to the importance of the credibility of Mr. Verschleiser. But these are the kinds of issues that are proper subjects of motions in limine.

Nevertheless, it is clear that the parties should not mention any arrest history, prior convictions, or drug use relating to any of the defendants.

In considering whether to make any applications during the trial, the plaintiffs should be aware that arrests are not convictions and are not probative of credibility. See Roguz v. Walsh, No. 09-1052, 2013 WL 1498126, at *4 (D. Conn. Apr. 5, 2013) ("However, arrests are not admissible under Rule 609."); Fed. R. Evid. 609(a) ("The following rules apply to attacking a witness's character for truthfulness by evidence of a criminalconviction") (emphasis added). Moreover, the plaintiffs have not suggested that any of the defendants have been convicted of a felony so as to trigger Rule 609(a), nor have the plaintiffs suggested that any of the defendants have been convicted of a crime involving a dishonest act or false statement so as to trigger Rule 609(b). Further, prior drug use is generally not admissible for purposes of impeachment absent a showing that it had an effect on the witness's ability to perceive the events in question or that it impairs the testifying witness's memory. See, e.g., Furlong v. Circle Line Statue of Liberty Ferry, Inc., 902 F. Supp. 65, 69 (S.D.N.Y. 1995) (Chin, J.). The plaintiffs have not made such a showing in this case, nor is there any reason to believe that plaintiffs could introduce the evidence of drug use for the proper purpose of demonstrating the witness's testimonial capacities. Therefore, the motion is granted without prejudice to a showing by the plaintiffs that they intend to introduce the evidence of drug use for a proper impeachment purpose. Such a showing should be made outside the presence of the jury.

D.

The defendants move to exclude any mention during the trial, including through cross examination, of Our Place or its subsidiary, Magenu. These entities are purportedly charitable organizations that the plaintiffs believe are being misused byMr. Verschleiser. In response to the motion, the plaintiffs say that the motion is premature and that the plaintiffs should be entitled to "cross examine Verschleiser regarding these two organizations for the purposes of impeaching his credibility." Opp. at 10. That response is frivolous. There is a motion to preclude the plaintiffs from mentioning these two organizations because there is no good faith basis for examination on those subjects. That motion is certainly not premature. It is certainly a proper motion in limine. In response to the motion, the plaintiffs have offered no evidence to support any contention that there is anything that is improper in Mr. Verschleiser's alleged relationship to these organizations. It would have been useful if the parties had even cited the Federal Rule of Evidence directly on point - Federal Rule of Evidence 608. That Rule allows cross examination, in the discretion of the court, on instances of a witness's conduct to attack a witness's character for truthfulness, but excludes extrinsic evidence of such conduct. The plaintiffs have made no proffer that there is any evidence that examination of Mr. Verschleiser's relationship to these organizations would support an attack on his credibility. Because the plaintiffs have not attempted to justify their examination of Mr. Verschleiser on these subjects, the motion to preclude any mention of these organizations is granted without prejudice to any proffers thatthe plaintiffs may make at trial outside the presence of the jury. There should be no reference to these organizations without raising the issue with the Court beforehand.

E.

The defendants move to preclude the plaintiffs from offering speculative testimony about lost business opportunities, such as the Opera Real Estate Deal and a mortgage loan being negotiated with Bancorp, and other lost opportunities, and the resulting lost profits. The speculative testimony would allegedly come from Mr. Frydman. The problem with the motion is that it appears to be a renewed motion for summary judgment. The plaintiffs point to the lack of evidence submitted in the...