FILED: NEW YORK COUNTY CLERK 09/11/2019 10:47 PM
`NYSCEF DOC. NO. 230
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`INDEX NO. 159549/2017
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`RECEIVED NYSCEF: 09/11/2019
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`SUPREME COURT OF THE ST A TE OF NEW YORK
`COUNTY OF NEW YORK
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`Index No.: 159549/2017
`X
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`LOURA ALA VERDI, an Incapacitated Person,
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`by her Guardian, RUDY ARD WHYTE, ESQ.,
`COMBINED
`AFFIRMATION
`IN SUPPORT AND
`LEGAL ARGUMENT1
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`Plaintiff,
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`-against-
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`HUEY BUI, JENNY YMOUI CHEV, ROSEANN
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`BIRRITTELLA and RALPH LAUREN
`CORPORATION,
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`Assigned to:
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`Hon. Adam Silvera
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`Defendants.
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`MSQ: 010
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`X
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`DAVID GODOSKY, an attorney duly admitted to practice in the Courts of the state of
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`New York, hereby affirms the following to be true under the penalty of perjury:
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`for the plaintiff1. I am a member of the firm of GODOSKY & GENTILE, P.C., attorneys
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`herein, and as such, am fully familiar with the facts and circumstances surrounding this
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`matter.
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`as follows:Motion, for an Order, in Support of the within 2. I make this Affirmation
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`1)Pursuant to CPLR §3212, granting plaintiffs summary judgment on the issue of
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`liability against the defendants;
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`2)Pursuant to CPLR §3212( a)( e )( 1) setting this matter down for an immediate trial on the
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`issue of damages;
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`3)For such other, further and different relief as this Court deems just and proper.
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`(hereinafterfor Loura Alaverdi as the Guardian Whyte, 3. This action is brought by Rudyard
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`"plaintiff' or "Loura") to recover damages for severe and permanent personal injuries
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`1 We respectfully submit that, as we are submitting a combined affirmation and legal argument, plaintiff's
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`submission complies with the Court's rules on page limitations.
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`FILED: NEW YORK COUNTY CLERK 09/11/2019 10:47 PM
`NYSCEF DOC. NO. 230
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`INDEX NO. 159549/2017
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`RECEIVED NYSCEF: 09/11/2019
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`which plaintiff was caused to sustain after being struck by an SUV while on the sidewalk
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`on Madison A venue, at or near East 64th Street,
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`County, City and State of New York.
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`Preliminary Statement
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`4. On July 201h, 2017, just after 4:40 p.m., Loura Alaverdi,
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`a 41-year-old mother of two
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`children and a Partner at the law firm of Baker Hostetler, had finished shopping on Madison
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`A venue and was walking southbound on the east sidewalk on her way to collect her
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`children from daycare.
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`She was finalizing her plans to celebrate her birthday with her
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`partner and father of their children, Renny Cabreros. It was on that date, time and location
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`that everything in her life was taken away. It was then that the SUV driven by defendant
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`Huey Bui ("Bui") ran up onto the sidewalk at 50 m.p.h., crashing through a mailbox, a
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`lamppost and then into Loura Alaverdi's body. Loura would never again regain
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`consciousness and today she remains comatose, in a vegetative state, at New York
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`Presbyterian/Weill Cornell Medical Center.
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`to her and, to a certainty, she will never5. It is unlikely that Loura ever knew what happened
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`know why this happened to her. But the defendants -Huey Bui, Roseanne "Buffy"
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`Birrittella ("Birrittella") and The Ralph Lauren Corporation ("RLC") -knew right away
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`why this horrific accident had occurred. Because the defendants knew that the driver, Huey
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`Bui, was a drug addict. They knew that Birrittella had "fired" Bui eleven ( 11) weeks before
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`the accident because his drug use had made him unreliable as a driver - a role he had filled
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`for Birrittella ( a top-level executive at RLC) and RLC for 16 years. They knew that even
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`after being terminated as a driver due to his drug use, Bui had effortlessly returned as the
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`driver for Birrittella on behalf of RLC -the only job and employers Bui had for over 16
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`years. And, of course, Bui himself knew he had ingested more than 10 times the maximum
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`FILED: NEW YORK COUNTY CLERK 09/11/2019 10:47 PM
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`recommended
`dose of Tramadol
`while also snorting
`cocaine
`just over an hour before the
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`accident.
`Bui then made the reckless
`-indeed,
`criminal
`-decision
`to drive an SUV through
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`the streets
`of New York County during
`rush-hour
`and when, due to the drugs,
`his brain
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`seized
`and shut down, he floored the accelerator
`and sent his 6,000-pound
`vehicle
`hurtling
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`Each of the defendants
`knew the risks Bui posed,
`but no one did
`into Loura Alaverdi.
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`anything
`to stop it. Bui kept his job, Birrittella
`kept her driver
`and RLC kept paying
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`Birrittella
`extra money every two weeks in order to pay Bui his "salary"
`and RLC continued
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`to schedule
`every minute and every hour of Huey Bui's work day. In short,
`Buffy Birrittella
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`and RLC hired,
`retained
`and placed
`their trust in a drug addict
`and Loura Alaverdi
`paid for
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`that decision with
`her life.
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`6. Huey Bui is now incarcerated,
`convicted
`of, inter alia, Assault
`in the Second Degree,
`with
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`a manslaughter
`indictment
`awaiting
`him in the future;
`Loura Alaverdi's
`children
`have lost
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`their mother and Renny Cabreros
`his life partner;
`and the totality
`of the evidence
`from the
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`criminal
`trial
`and this civil proceeding
`demonstrates
`that each of the defendants
`is, as a
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`matter
`of law, responsible
`for this accident
`and the horrific
`injuries
`inflicted
`upon Loura
`
`Alaverdi.
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`Procedural
`History and Attached
`Exhibits
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`7. Plaintiff
`commenced
`this lawsuit
`by filing a Summons and Complaint
`on October
`26, 2017.
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`A copy of same is annexed hereto
`as Exhibit
`"A".
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`8. Issue was joined by the filing and service
`of an Answer on behalf
`of Ralph Lauren
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`Corporation
`on November
`15, 2017. A copy of same is annexed
`hereto
`as Exhibit
`"B".
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`9. The Answer on behalf
`of Huey Bui and Jenny Y moui Chev ("Chev")
`was filed
`and served
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`on November
`22, 2017. A copy of same is annexed
`hereto
`as Exhibit
`"C".
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`FILED: NEW YORK COUNTY CLERK 09/11/2019 10:47 PM
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`10.The Answer on behalf
`of Roseanne
`Birrittella
`was filed and served
`on December
`15, 2017.
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`A copy of same is annexed
`hereto
`as Exhibit
`"D".
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`11.An Amended Complaint
`was filed and served on January
`8, 2018. A copy of same is
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`annexed
`hereto
`as Exhibit
`"E". The Amended Complaint
`substituted
`in Rudyard
`Whyte as
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`the Temporary
`Guardian
`pursuant
`to the Order of Judge Tonya
`Kennedy.
`Judge Kennedy's
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`Order is annexed
`hereto
`as Exhibit
`"F".
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`12.A Second Amended Complaint
`was filed and served
`pursuant
`to a stipulation
`"so-ordered"
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`by Judge Adam Silvera.
`A copy of the Second Amended Complaint
`is annexed
`hereto
`as
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`Exhibit
`"G".
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`13.The Answers
`of the defendants
`to the Second Amended Complaint are
`collectively
`annexed
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`hereto
`as Exhibit
`"H".
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`14.The Bills of Particulars
`served
`on defendants
`are annexed
`hereto
`as Exhibit
`"I".
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`15.A copy of the Police
`Accident
`Report
`is annexed
`hereto
`as Exhibit
`"J".
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`16. A copy of the certified
`Certificate
`of Conviction
`of Huey Bui is annexed
`hereto
`as Exhibit
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`"K".
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`17.The EBT Transcript
`of Renny Cabreros
`is annexed
`hereto
`as Exhibit
`"L".
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`18.The EBT Transcript
`of Jeff Mandel,
`produced
`as a witness
`on behalf
`of RLC, is annexed
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`hereto
`as Exhibit
`"M".
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`19.The EBT transcripts
`of Roseanne
`Birrittella
`are annexed
`hereto
`as Exhibit "N"
`( deposed
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`on January
`31 and August 13, 2019).
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`20.The EBT Transcripts
`of Mary Haas, produced
`as a witness
`on behalf
`of RLC, are annexed
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`hereto
`as Exhibit
`"O" ( deposed
`on May 13 and June 1 7, 2019).
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`FILED: NEW YORK COUNTY CLERK 09/11/2019 10:47 PM
`NYSCEF DOC. NO. 230
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`testimony of witnessesand other excerpted testimony 21.Transcripts of Roseanne Birrittella's
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`from the criminal trial, People of the State of New York v. Huey Bui, are annexed hereto as
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`Exhibit "P".
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`"Q".are annexed hereto as Exhibit 22.Contracts between Huey Bui and RLC/Birrittella
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`"daily calendars"Bui including Haas and/or between Birrittella, 23.E-mails and text messages
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`are annexed hereto Exhibit "R".
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`24.Text message from Bui to Birrittella, dated August 1, 2017, is annexed hereto as Exhibit
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`"S".
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`as "T".of Huey Bui are annexed hereto 25.Social Media pages and posts
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`as Exhibithereto Accountant, is annexed CPA and Forensic 26.Affidavit of Mark Gottlieb,
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`"U".
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`27.Organization Chart of RLC, annexed hereto as Exhibit "V".
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`28. Plaintiff
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`filed the Note of Issue on July 19, 2019. A copy of same is annexed hereto as
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`Exhibit "W". All discovery is now complete and this motion is filed within sixty (60) days
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`of the Note of Issue and is, therefore, timely and in compliance with the Part Rules of the
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`Honorable Adam Silvera.
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`29.Sentencing minutes for Huey Buey, annexed hereto as Exhibit "X".
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`on"Y" (deposed hereto as Exhibit 30.The EBT transcript of Jenny Ymoui Chev is annexed
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`August 7, 2018).
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`conviction andof the criminal of Huey Bui as a result 31.After dispensing with the liability
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`the principles of collateral estoppel, we will then demonstrate to this Court the liability of
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`the remaining defendants as follows:
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`2
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`2 Jenny Chev, as the owner of the vehicle operated by Bui, is also liable as a matter of law based upon her vicarious
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`liability pursuant to Vehicle and Traffic Law §388.
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`7
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`FILED: NEW YORK COUNTY CLERK 09/11/2019 10:47 PM
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`RECEIVED NYSCEF: 09/11/2019
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`• Buffy Birrittella
`exercised
`such control
`over Bui that he was her employee
`and she is
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`vicariously
`liable
`for his actions.
`On the date of the accident
`Huey Bui was, as per usual,
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`driving
`Birrittella
`in the course
`and in furtherance
`of her employment
`with RLC.
`Birrittella
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`paid Bui's salary
`directly
`for 7 years (albeit
`subsidized
`by RLC specifically
`for this
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`"expense")
`and Bui drove for Birrittella
`for 16 years.
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`• Buffy Birrittella
`was and is a high-ranking
`executive
`of RLC (in the organizational
`chart
`
`she reports
`only to Ralph Lauren)
`such that her actions
`"bind" the corporation
`and her
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`negligence
`is fully imputed
`to RLC.
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`• Huey Bui was an employee,
`a "joint
`employee,"
`and/or
`an "employee-in-fact"
`of RLC and
`
`Birrittella
`and they exercised
`joint control
`over Bui for 16 years.
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`• RLC, by grossing
`up her salary
`to pay Bui, ratified
`the use of Huey Bui as a driver/servant
`
`by their employee,
`Buffy Birrittella,
`with the joint understanding
`that Birrittella
`required
`a
`
`driver
`to effectively
`perform her job and duties
`on behalf
`of RLC.
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`• Birrittella
`and RLC negligently
`hired and retained
`Bui who
`they knew or should have
`
`known was suffering
`with a significant
`drug addiction
`and they continued
`to place Bui
`
`behind the wheel of a vehicle
`in furtherance
`of his duties
`on behalf
`of Birrittella
`and RLC.
`
`At a minimum,
`RLC would be vicariously
`liable
`for the negligent
`retention
`of Bui by their
`
`high-ranking
`executive,
`Birrittella.
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`32.RLC and Buffy Birrittella
`jointly
`utilized
`Huey Bui's services
`in furtherance
`of the business
`
`of RLC for 16 years.
`They paid, controlled
`and directed
`him. When he faltered
`due to a
`
`drug addiction,
`he was fired and then, without
`missing
`a beat, hired right back. Under the
`
`facts of this case
`and the applicable
`law in the State of New York, RLC and Birrittella
`are
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`liable
`for the reckless
`and negligent
`conduct
`of Huey Bui.
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`FILED: NEW YORK COUNTY CLERK 09/11/2019 10:47 PM
`NYSCEF DOC. NO. 230
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`RECEIVED NYSCEF: 09/11/2019
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`Factual
`Summary
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`33.On April 29, 2017, Buffy Birrittella
`drafted and sent an e-mail
`to her long-time
`driver,
`
`Huey Bui. Birrittella
`"cc'd"
`the e-mail
`to her executive
`assistant
`at RLC, Mary Haas.
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`read as follows3
`Birrittella
`titled
`the e-mail
`"With a very heavy heart."
`The e-mail
`
`:
`
`I have
`given u many chances
`to
`"I will have to terminate
`your employment.
`correct
`your inability
`to fulfill your job and many second chances,
`warnings,
`pleas
`for you to get help, take some time off to get help. Hopefully,
`now you will take
`this time to get help.
`I really,
`really
`hope so. I am so sorry to have to do this,
`but I
`think it is the only way for you to confront
`your issues,
`which you continue
`to deny.
`When you are back on your feet, let me know. With deep sadness,
`Buffy"
`(emphasis
`added).
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`34.Had Birrittella
`adhered
`to her decision
`to terminate
`from her employ a person she knew
`
`was battling
`a drug addiction,
`it is a certainty
`that Loura Alaverdi
`would never have been
`
`run down by
`Huey Bui on Madison
`A venue. However,
`because
`Birrittella
`ignored
`her own
`
`conclusions
`and all sound hiring
`and retention practices,
`Bui continued
`to drive for
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`moment on July 201\
`Birrittella
`and RLC after this e-mail
`and up until the catastrophic
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`2017. The history
`between
`Birrittella,
`Bui and RLC no doubt colored
`the decision-making
`
`process
`here and these long and involved
`relationships
`must be fully examined
`to
`
`demonstrate
`the joint liability
`of the defendants.
`
`The Ralph Lauren Corporation,
`Buffy Birrttella
`and Huey Bui
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`35.Roseann
`"Buffy" Birrittella
`is employed
`as an executive
`vice president
`and senior
`creative
`
`director
`for Ralph Lauren womenswear
`and serves
`as special
`advisor
`to the executive
`
`Ralph Lauren (Ex. "N", 10). She held the same positions
`on July 20, 2017.
`chairman,
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`3 The e-mail
`was sent from Birrittella's
`RLC e-mail
`address
`(Buffy .Birrittella
`@RalphLauren.com
`) and was cc'd to
`Ms. Haas at Mary.Haas@RalphLauren.com
`.
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`FILED: NEW YORK COUNTY CLERK 09/11/2019 10:47 PM
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`Birrittella
`reports
`directly
`to Ralph Lauren (Ex. "N", 15; Ex. "V"). Birrittella's
`executive
`
`assistant
`in 2017 was Mary Haas, who reported
`only to Birrittella
`(Ex. "N", 21).
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`36.Birrittella
`started
`at RLC in 1971 when she was "one of six" people working
`there,
`
`including
`Mr. Lauren (Ex. "N", 24-25).
`She has worked there continuously
`until the
`
`present
`and advises
`Ralph Lauren on design,
`advertising
`and acts as Mr. Lauren's
`"right­
`
`hand assistant"
`(Ex. "N").
`
`37.Birrittella
`came to know defendant
`Bui and his brother, Billy
`Bui, through her
`employment
`
`at RLC, when the brothers
`were working
`at a limousine
`company
`that RLC used to provide
`
`Birrittella
`testified
`that she believed
`that this was sometime
`car services
`for executives.
`
`prior to September
`2001 (Ex. "N", 71-73).
`Birrittella
`communicated
`to RLC that there
`
`would be a benefit to her having a regular
`driver
`at her disposal
`and RLC management
`
`Again, Birrittella
`recalls
`agreed and Huey Bui was hired as Birrittella's
`this
`driver.
`
`arrangement
`in place prior to September
`11, 2001. Hence, by July of 2017 there was at
`
`and RLC.4
`least a 16-year
`exclusive
`relationship
`between
`Bui, Birrittella
`
`38.A contract
`was drafted and entered
`into between
`Bui and RLC (executed
`by Birrittella
`on
`
`behalf
`of RLC) for Bui to serve as her driver.
`The contract
`stated,
`"This is a contract
`and
`
`is intended
`to offer during
`the period
`of the contract
`the requirements
`for transportation
`
`Further,
`the contract
`defined the services
`services
`for Buffy Birrittella"
`(Ex. "N", 74-75).
`
`to be provided
`as "routine
`and special
`car transportation
`services
`to or from all Ralph
`
`Lauren corporate
`locations
`... " (Ex. "N", 7 5). The agreement
`was executed
`in 2003.
`
`4 It is clear that this relationship
`was "exclusive."
`Co-defendant
`Jenny Chev, the owner of the SUV that Huey Bui
`was driving
`and also Sui's sister-in-law,
`testified
`at an EBT on August 7,
`2018. Chev testified
`that Huey Bui lived
`with her (and his brother)
`for more than five years before the date of her deposition
`(Ex. "Y", 12). Chev knew that
`Bui was working
`as a "driver"
`for "Ralph Lauren
`Designer" and "Buffy" for "more than fifteen years"
`(Ex. "Y", 13-
`14). Finally,
`Jenny Chev confirmed
`that,
`for the period
`ofat least 10 years prior to the accident,
`Bui never had any
`and Buffy (Ex. "Y", 46).
`employment
`with anyone other
`than "Ralph Lauren
`Designer"
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`10
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`FILED: NEW YORK COUNTY CLERK 09/11/2019 10:47 PM
`NYSCEF DOC. NO. 230
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`INDEX NO. 159549/2017
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`RECEIVED NYSCEF: 09/11/2019
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`During the existence of the agreement and its subsequent renewals (through 20 I 0),
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`payments were made from RLC to Bui directly (Ex. "N", 98). Birrittella estimated that the
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`work/personal percentage breakdown of Bui' s services to her was "ninety" percent work-
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`related (Ex. "N", 101).
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`executiveincluding Jerry Lauren, other RLC executives, 39.Bui was also available to transport
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`vice-president, David Lauren (son and employee at RLC), Lauren Lauren (David's wife),
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`David and Lauren's child and nanny, Charles Fagan, chief of staff to Ralph Lauren,
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`Michael Morelli, creative director, Lisa Will Kaess, Head of Children's Design, as well as
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`Mary Haas, by herself, on numerous occasions (Ex. "N", 240-245). While defendants have
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`attempted to characterize Bui as just one of many people in Birrittella's life that she paid
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`for services, there is no evidence that a vast array of RLC family members and executives
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`were utilizing Birrittella's hairdresser or doctors in furtherance of RLC business (nor was
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`she being "grossed up" to cover her personal landscaping fees). Huey Bui stands alone as
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`the sole employee utilized by both Birrittella and RLC executives in furtherance of RLC
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`business.
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`confirmed that,of Bui's services, Birrittella on the work purpose 40.To drill down a bit deeper
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`between 2010 and 2017 (to the date of the accident), the "purpose" of Bui's services in
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`transporting her to and from her home was clearly for and in furtherance ofRLC's business.
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`On these trips, Birrittella would review "designs ... samples (and work) ... on the design of
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`the clothes" (Ex. "N", 80). Birrittella agreed that having Bui drive her and, specifically
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`transport her to and from RLC offices, was "beneficial to (Birrittella) in discharging (her)
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`obligations at Ralph Lauren" and it was beneficial to RLC that Birrittella had a personal
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`driver at her disposal during this time-period (Ex. "N", 81-82). On one occasion, Birrittella
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`FILED: NEW YORK COUNTY CLERK 09/11/2019 10:47 PM
`NYSCEF DOC. NO. 230
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`INDEX NO. 159549/2017
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`RECEIVED NYSCEF: 09/11/2019
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`chastised Bui for his lateness by explaining that "A lot of people depend on my being on
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`time. I have a job and a responsibility, and I expect (you) to be respectful of that, please"
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`(Ex. "N", 246; Ex. "R", 490).
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`( or cases)from other circumstances 41.This arrangement was, of course, materially different
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`where an employee is merely "commuting" to or from work (i.e., driving themselves); here
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`Birrittella and RLC had contracted with Bui specifically so that Birrittella could remain
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`actively working while she was being transported around NYC by · Bui. Birrittella
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`explained that "I need a driver, and the company recognizes that I need a driver, and,
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`therefore, they are grossing up my compensation to allow for my need for the driver in
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`order to perform my functions for the company" (Ex. "N", 281). Without a driver,
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`Birrittella testified, she could not effectively do her job (Ex. "N", 281 ). 5
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`withtreatment of the expenses associated 42. This was confirmed by RLC's and Birittella's
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`her travel outside of Huey Bui's driving services.
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`Birrittella's contract with RLC called
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`for the "prompt reimbursement for all reasonable and customary expenses incurred by
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`[Birrittella] in ... performing [the] services hereunder" (Ex. "N", 106-109). Birrittella
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`considered her travel to and from work be a reimbursable expense under these provisions.
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`travel, whether or notQ. No. First I'm asking whether or not you considered
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`you considered your traveling to and from work to be something that was
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`within the purview of these expenses?
`A. Yes.
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`whenever Bui was unable toWe know this because 43.RLC concurred in this assessment.
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`perform his usual and customary duties as a driver for Birrittella, a car service or Uber was
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`5 Birrittella went so far as to state that she could not competently perform her job when other transportation methods
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`were used. When Uber was used in Bui's absence, Birrittella described it as a "nightmare" and they could not
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`provide the necessary services. Birrittella testified that in "continuing to try to do my job for Ralph Lauren ... !
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`continued with Huey" and "Because in order to do my job, I had to continue to use him" (Ex. "N", 295, 297).
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`FILED: NEW YORK COUNTY CLERK 09/11/2019 10:47 PM
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`utilized by Birrittella in Bui's absence. That expense -the car service or Uber fees -was
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`paid by RLC directly or Birrittella was reimbursed for the expense by RLC. As an example,
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`when Birrittella used a company called "Davel" for transportation from RLC offices (650
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`Madison Avenue) to her home (76 Laight Street), the trip was accepted as a "business
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`expense" and "in furtherance of Ralph Lauren's business" and the expense (Davel bill) was
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`paid or reimbursed by RLC (Ex. "N", 171-172).
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`44.Birrittella acknowledged that when the services that Bui provided -and was compensated
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`for at a yearly salary in excess of $90,000 -had to be performed by another driver, be it
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`Uber or a private car company, the expense was always covered by RLC when the travel
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`involved trips between her home and RLC, exactly like the trip she was on when the
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`accident occurred (Ex. "N", 174-176).
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`6
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`45.Bui' s salary also demonstrates the joint control of Bui by Birrittella and RLC. In 2011,
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`after Bui had served as the exclusive driver of their executive for a decade, RLC wished to
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`institute a change in how Bui would be paid for his services. The testimony and documents
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`demonstrate that the "change" was largely illusory and merely resulted in the necessary
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`amount of money being passed from RLC through Birrittella and then to Bui. Other than
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`setting up Birrittella as a "straw man" ( or "woman") in which the funds would be passed
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`on to Bui, there was absolutely no change in the duties, responsibilities, oversight and
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`control of any of the parties involved here. Birrittella explained the "new" arrangement
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`but, as further demonstrated by Mark Gottlieb, CPA, in his affidavit annexed hereto as
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`in sick, the expense report reflecting
`the submission from Birrittella itemized the bill
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`6 For example, when Bui called
`expense (Ex. "N",
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`as "car to get work, driver was sick" and RLC reimbursed their executive for this business-related
`178).
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`FILED: NEW YORK COUNTY CLERK 09/11/2019 10:47 PM
`NYSCEF DOC. NO. 230
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`INDEX NO. 159549/2017
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`RECEIVED NYSCEF: 09/11/2019
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`Exhibit "U", the change had no effect from an accounting perspective and still rendered
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`Bui a joint employee of RLC and Birrittella.
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`to Bui rather than46.Birrittella testified that in April of 2011, she began making the payments
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`It was explained to
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`having the payments come directly from RLC (Ex. "N", 138-139).
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`Birrittella that the change was being made by RLC because "the company wished to no
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`longer pay Mr. Bui directly ... this was something that the corporation was doing
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`consistently with senior executives ... it was a companywide initiative, if you will, that
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`made how they treated drivers for various executives in a comparable manner" (Ex. "N",
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`140). Despite the shift in payment, Birrittella agreed that Bui's duties,· work and
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`responsibilities did not change at all after April of 2011 (Ex. "N", 142).
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`47. Birrittella's characterization that RLC no longer wished to make payments "directly" to
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`Bui was quite accurate, as what RLC ended up doing was merely paying Bui indirectly, all
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`of hisand the same control the while maintaining the exact same services
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`daily/weekly/monthly schedule.
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`In April of 2011, simultaneously with Birrittella taking
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`over responsibility for the actual payments to Bui, RLC agreed to increase Birrittella's
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`salary by a commensurate amount so that, after taxes, she could pay Bui' s salary (between
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`$88,000 and $92,000) without any economic impact upon her at all. Birrittella agreed with
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`plaintiff counsel's characterization that Birrittella's income was increased in such an
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`amount so as to "offset the ... $90,000 individual hit" (Ex. "N", 142). Hence, RLC merely
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`increased their executive's salary (the "gross-up") to the exact amount of the payment to
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`the driver, such that said amount would pass through Birrittella's account and, after taxes
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`were deducted, be paid to Bui. Other than setting up this economic straw-man, everything,
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`as far as Bui and Birrittella were concerned, remained exactly the same as before. Again,
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`FILED: NEW YORK COUNTY CLERK 09/11/2019 10:47 PM
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`RECEIVED NYSCEF: 09/11/2019
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`as noted in the annexed expert affidavit, this scheme provides no succor to RLC's
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`anticipated claim that Bui was no longer their employee or under their control.
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`48. Once Birrittella was required to make payments to Bui, the checks were drawn from her
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`personal account for the agreed upon "salary" broken down in to 12 monthly payments -
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`each month in the same amount and often noted as "salary" in the memo portion of the
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`check (Ex. "N", 149). Bui was not provided with either a 1099 or a W-2 from either
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`Birrittella or RLC from 2011-2017.
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`49.Toward the end of 2016 and into 201 7, Birrittella recalled that Bui' s absences became more
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`frequent and her use of outside car services increased as a result thereof (Ex. "N", 184).7
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`For example, on December 18, 2016, Birrittella texted Bui "Let me know when you pick
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`up Sheila. Huey where are you? I'm freaking out. You are AWOL." (Ex. "N", 254; Ex.
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`"R", 528). In the late spring of 2017, Birrittella felt the situation had worsened and then
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`reached a breaking point. On April 4, 2017, texts from Birrittella to Bui read "Where are
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`you?" "Help!!!" "When do you plan coming (sic) to work today?" (Ex. "N", 256; Ex. "R",
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`583). The messages become more urgent: "Huey, I'm very, very worried about you. I
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`think you need help. Please talk to me. This cannot go on where you just disappear,
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`sleep through when you should be here. I have to use Uber half the time and I cannot
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`rely upon you. We need to talk tomorrow, please. I only pray that you are going to
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`be okay." (Emphasis added) (Ex. "N", 256-257; Ex. "R", 584). Just three (3) days later,
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`on April 7th, the same problems
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`on working today? I need to occurred: "Are you planning
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`know. I have a lot to do after 5:50, and I really need you to show up. Huey, again, I am
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`7 Birrittella confirmed that the absences and problems she was experiencing with Bui clearly had to be known to
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`Mary Haas because Haas was responsible for arranging for the alternative transportation caused by Sui's absences.
`(Ex. "N", 255, 273-274).
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`FILED: NEW YORK COUNTY CLERK 09/11/2019 10:47 PM
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`INDEX NO. 159549/2017
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`RECEIVED NYSCEF: 09/11/2019
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`very worried about you and that you need help." (Emphasis added) (Ex. "N", 258; Ex.
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`"R", 585-587).
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`Finally, the situation become intolerable and Birrittella confronted Bui,
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`pointedly telling him that "this has to stop" and demanded to know what was going on with
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`him and his health (Ex. "N", 184). After consulting with her own doctor as to how someone
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`might exhibit problems if "someone was on drugs," Birrittella questioned Bui, asking "Do
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`you have a drug or alcohol problem?" (Ex. "N", 185). Bui denied everything. At the end
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`of April, Birrittella fired Bui via the above-referenced e-mail, imploring Bui to get the
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`help he so desperately needed. Birrittella texted her long-serving driver on April 29th, "I
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`believe you have your paycheck for May .... Hopefully you can take this month off to get
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`the help you need. I am rooting for you." (Ex. "N", 262; Ex. "R", 605).
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`50.After Bui responded to his termination by asking for one week to get himself in order,
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`Birrittella replied ( on April 301h) "Is one week enough time? Where are you living?
`Are
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`you on drugs? You may need more time. Have you consulted a professional, a doctor?
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`okay? And as your boss and your friend you need to be
`You need to get clean and sober,
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`real here. You have to be here and responsible not just for me but for yourself." (emphasis
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`added) (Ex. "N", 265, 269; Ex. "R", 611).8 With no evidence
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`that he received any such
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`help ( or even admitted to Birrittella what Birrittella clearly knew -that he was a drug
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`addict), and after just one week away, Bui returned to drive Birrittella in furtherance of her
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`work as an executive with RLC.9 This despite
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`the fact that Birrittella concluded on May
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`8 In the world of Buffy Birrittella and RLC -post-catastrophic accident, of course -"terminate" does not mean
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`"terminate," "employment" does not mean "employment," "boss" does not mean "boss" and telling someone they
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`"need to get clean and sober" does not mean that you really think they have a substance problem. These linguistic
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`games of sophistry would be comical in another venue perhaps, but not with a mother of two lying comatose in NY­
`Cornell Hospital.
`9 Incredibly, Birrittella claimed she did not even remember writing the "heavy heart" e-mail, an e-mail that was
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`firing her 16-year driver after the endless stream of problems and warnings. Likewise, Birrittella was at a loss to
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`explain how it was that Bui came back after one week and had no knowledge of any explanation he provided for his
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`behavior nor any proof of any medical help or remedial actions he took in his one-week absence (Ex. "N", 259).
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`16
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`FILED: NEW YORK COUNTY CLERK 09/11/2019 10:47 PM
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`RECEIVED NYSCEF: 09/11/2019
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`1st with a warning to Bui "I need to know what you are specifically
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`doing to correct this,
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`not just love." (Ex. "N", 269-270; Ex. "R", 613). As it turned out, that last statement was
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`completely untrue. Birrittella and RLC did not need to know anything at all from Bui after
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`he was fired and told to get clean and sober. Because Birrittella and RLC allowed his
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`return to their service without Bui producing any evidence - a doctor's note, attendance at
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`a program, anything -of any steps he actually took ( or even told them he took) to "correct
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`this" problem before he was allowed to get back behind the wheel.
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`at Ralph Lauren's offices at 65051. On July 20, 2017, Huey Bui picked up Buffy Birrittella
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`Madison Avenue at around 4:30 p.m. He was driving a black Suburban SUV owned by
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`his sister-in-law and co-defendant, Jenny Chev. Birrittella's assistant, Mary Haas, had
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`instructed Bui to make the pick-up at that address and time. He was to take Birrittella back
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`to her residence on Laight Street (Ex. "N", 9-10). Birrittella confirmed that her
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`transportation to her home from the office was "part of (her) compensation package" and
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`that she would routine