FILED: ORLEANS COUNTY CLERK 02/22/2024 12:55 PM
`NYSCEF DOC. NO. 272
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 02/22/2024
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`STATE OF NEW YORK
`SUPREME COURT : COUNTY OF ORLEANS
`_____________________________________
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`AB 511 DOE,
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`Plaintiff,
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`v.
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`LYNDONVILLE CENTRAL SCHOOL
`DISTRICT AND LYNDONVILLE
`ELEMENTARY SCHOOL,
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`Defendants.
`______________________________________
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`PLAINTIFF’S OPPOSITION TO
`DEFENDANT’S MOTION TO QUASH
`SUBPOENA OF DONALD BOW AND
`DIRECTING USE OF DEPOSITION
`TESTIMONY AT TRIAL
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`Index No. 20-46602
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`Hon. Deborah Chimes, J.S.C.
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`The undersigned, Leah Costanzo, Esq., an attorney at law, affirms that the following
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`statements are true, under penalty of perjury:
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`1.
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`I am an attorney licensed to practice law in the State of New York and am the
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`attorney for plaintiff in the above referenced matter. As such, I am fully familiar with the facts
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`and circumstances arising in this case.
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`2.
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`This Affirmation is respectfully submitted in opposition to defendant’s motion to
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`quash the trial subpoena duces tecum served on nonparty Donald Bow and seeking use of his
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`deposition at trial pursuant to CPLR § 3117(a)(3)(iii) in its place.
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`PROCEDURAL AND FACTUAL BACKGROUND
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`3.
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`Plaintiff has brought a claim under the Child Victims Act for abuse by the late Terry
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`Houseman at defendant’s school in 1986-1987. Terry Houseman was employed at defendant’s
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`school from 1970 to 1991.
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`4.
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`Donald Bow was supervising principal at defendant’s school from 1973 to 1978
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`and superintendent from 1978 to 1982.
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`FILED: ORLEANS COUNTY CLERK 02/22/2024 12:55 PM
`NYSCEF DOC. NO. 272
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 02/22/2024
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`5.
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`Plaintiff submitted initial discovery demands to defendant on May 18, 2021. See
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`cover letter attached as Exhibit A.
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`6.
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`Shortly thereafter, defendant issued “non-party” subpoenas for the depositions of
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`two former school administrators, Donald Bow and Russell Martino, without providing any
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`discovery, arguing that due to the witnesses ages and health conditions, they needed to be deposed
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`immediately.
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`7.
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`Defendant initially attempted to schedule these depositions for July 20, 2021 and
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`conduct them without providing plaintiff with any discovery responses. When plaintiff refused to
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`participate in the depositions without discovery, they were adjourned.
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`8.
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`On July 22, 2021, defendant provided plaintiff with partial discovery responses
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`which consisted of a partial, redacted transcript of Houseman’s criminal trial, board minutes
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`referencing Houseman and his school file, select documents relating to the 1990-91 criminal
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`investigation, copies of plaintiff’s pleadings, copies of AB 524 Doe’s pleadings, defendant’s
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`record retention policy, and plaintiff’s medical records.
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`9.
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`While these discovery responses consisted of approximately 700 pages, notably
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`missing were plaintiff’s student file, the employment files of Donald Bow and Russell Martino,
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`anything related to defendant’s policies and procedures during the relevant time frame, and
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`defendant’s responses to plaintiff’s request for interrogatories. Despite having omitted these
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`relevant documents and before plaintiff even had a chance to review the sufficiency of what was
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`provided, defendant began demanding that plaintiff’s counsel agree to attend nonparty depositions
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`of Mr. Bow and Mr. Martino in August of 2021. See emails at Exhibit B.
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`10.
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`Thereafter, your affirmant informed defendant’s counsel that more time was needed
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`to review the discovery and dates to conduct these depositions in September of 2021 were
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`FILED: ORLEANS COUNTY CLERK 02/22/2024 12:55 PM
`NYSCEF DOC. NO. 272
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 02/22/2024
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`provided. In response, defendant issued amended Notices of Deposition scheduling the depositions
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`for August 30, 2021. I notified defense counsel that I was required to be in federal court for motion
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`practice that day and indicated that plaintiff would move for a protective order if defendant sought
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`to proceed in plaintiff’s absence. See emails at Exhibit C.
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`11.
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`Ultimately, court intervention was requested. See Exhibit D. The depositions were
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`scheduled for September 24, 2021, and defendant was instructed to provide additional responsive
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`discovery.
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`12.
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`Only eight days before the depositions, defendant provided a response to plaintiff’s
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`request for interrogatories and almost 350 pages of additional discoverable documents including
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`plaintiff’s school file, the employment files of Mr. Bow and Mr. Martino, and agreements between
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`defendant and the Lyndonville Teacher’s Association. See letter at Exhibit E. The following day,
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`defendant provided more than 200 pages of additional documents which included defendant’s
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`various policies and procedures.
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`13.
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`Defendant had more than a year to investigate this claim and collect and review all
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`relevant documents and information in their possession, including those related to former
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`administrators Donald Bow and Russell Martino, while plaintiff – having to rely on defendant’s
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`production for information – did not have that opportunity. At the time the depositions of Mr. Bow
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`and Mr. Martino were conducted, plaintiff had inadequate paper discovery, no opportunity for
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`supplemental requests, and an insufficient amount of time to adequately prepare.
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`14.
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` After the Bow and Martino depositions, discovery proceeded and the parties
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`performed twelve additional depositions including plaintiff, four former teachers, a former
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`Business Administrator, a former Superintendent, two current staff members, plaintiff’s ex-wife,
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`nonparty witness Patrick Whipple, and plaintiff in a related case, AB 524 Doe. Additional records
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`FILED: ORLEANS COUNTY CLERK 02/22/2024 12:55 PM
`NYSCEF DOC. NO. 272
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 02/22/2024
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`from board meetings were provided, three onsite inspections of the school building took place, and
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`complete, unredacted documents and transcripts from Houseman’s criminal investigation and trial
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`were obtained.
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`15.
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`At the trial scheduling conference on January 16, 2024, defendant requested that
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`this Court permit them to use Donald Bow’s deposition transcript in lieu of live testimony due to
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`Mr. Bow’s health condition. At that time, plaintiff indicated that he would be calling Donald Bow
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`as a live witness at trial and could not consent to use of the deposition transcript. The Court advised
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`that medical documentation was necessary.
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`16.
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`On January 25, 2024, defendant emailed plaintiff the Affirmation of Kimberly Bow
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`dated January 25, 2024, Donald Bow’s daughter-in-law. (NYSCEF Doc. No. 239). While the
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`affirmation contained numerous hearsay statements with no attached proof or medical
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`documentation, it did confirm that Mr. Bow was not suffering from any mental incapacity. It also
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`failed to disclose to counsel or the Court that Ms. Bow is a current employee of defendant, and
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`therefore an interested witness, now seeking to prevent a “nonparty” from testifying.
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`ARGUMENT
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`17.
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`Defendant is seeking to quash plaintiff’s subpoena for the trial testimony of Donald
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`Bow and require the use of his deposition testimony at trial pursuant to CPLR § 3117(a)(3)(iii). A
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`copy of the subpoena issued to Mr. Bow is attached as Exhibit F.
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`18.
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`Defendant does not argue that Mr. Bow is not competent to testify and none of his
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`listed health conditions (Smith Aff., ¶11) indicate any mental infirmity. Instead, defendant’s
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`argument relates solely to his physical condition at age 92.
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`19. Mr. Bow initially testified in this matter at the age of 90. At that time, defendant
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`did not raise the issue of his age relative to his ability to testify.
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`FILED: ORLEANS COUNTY CLERK 02/22/2024 12:55 PM
`NYSCEF DOC. NO. 272
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 02/22/2024
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`20. While defendant continues to address Mr. Bow as a nonparty witness, it is readily
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`apparent that Mr. Bow is under the direct control of defendant, with unfettered access to
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`information in support of their position on this issue. Plaintiff does not have, and has not had, the
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`opportunity to explore Mr. Bow’s competency, ability to testify, and obtain a complete medical
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`picture of Mr. Bow’s present condition (to assess whether any of the alleged medical conditions
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`claimed in defendant’s motion were present when he initially testified in 2021) as defendant has
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`controlled the flow of information. The only medical evidence presented to this Court regarding
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`Mr. Bow’s ability to testify is heavily redacted medical records from an illness he suffered months
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`ago, an affidavit of defendant’s own employee saying Mr. Bow has certain medical conditions,
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`none of which affect his mental capacity, and a letter from his doctor asking for accommodations.
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`Plaintiff respectfully submits that this is insufficient to support preclusion of Mr. Bow’s trial
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`testimony under the circumstances, absent a voir dire.
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`21.
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`In support of their argument, defendant attaches select medical information which
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`has been largely redacted by some undisclosed person or party. From these records, plaintiff
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`understands that Mr. Bow was exposed to a respiratory illness and became ill at or around January
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`4, 2024. Contrary to defendant’s argument, Mr. Bow did not appear to have been hospitalized
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`following this illness (Smith Aff., ¶13) and was instead discharged home at the request of his
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`family (Smith Aff., Ex. C).
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`22.
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`Defendant argues that the only time Mr. Bow left his home was three weeks ago
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`due to a syncopal episode (Smith Aff., ¶13, 16). However, the affirmation of Kimberly Bow
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`establishes that this syncopal episode happened almost 2 months ago due to pneumonia. (Smith
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`Aff., Ex. A). All other relevant information regarding Mr. Bow’s condition at a January 12, 2024
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`FILED: ORLEANS COUNTY CLERK 02/22/2024 12:55 PM
`NYSCEF DOC. NO. 272
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 02/22/2024
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`follow-up appointment, including his prognosis, has been redacted (see Smith Aff., Ex. C, pp. 5-
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`11).
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`23. With respect to defendant’s claim that the January 4, 2024 and January 12, 2024
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`medical records establish that Mr. Bow “is ill, may experience more frequent episodes of cardiac
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`dysrhythmia, and may be nearing the end of his life,” (Smith Aff., ¶23), this quote is from the
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`emergency room visit of January 4, 2024 (Smith Aff., Ex. C). All other information from his
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`January 12, 2024 follow-up examination has been redacted.
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`24.
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`However, a note from his doctor Christina William, M.D. dated January 19, 2024
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`(Smith Aff., Ex. B), while not in admissible form, makes no mention that Mr. Bow is nearing end
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`of life, or that he is suffering from any respiratory illness, cardiac dysrhythmia, or syncope.
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`Instead, it merely states he is “unable to sit for long periods of time and/or partake of long
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`conversations,” and should avoid “these stressful situations” (Smith Aff., Ex. B). Mr. Bow appears
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`to have recovered from the respiratory illness which triggered the emergency room visit as it is
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`also not mentioned by his doctor.
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`25.
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`Plaintiff is not insensitive to the fact that Mr. Bow is 92 years old and may require
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`special courtesies not usually provided to other trial witnesses. In consideration of Dr. William’s
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`letter, plaintiff is willing to perform Mr. Bow’s additional deposition virtually, at a time prior to
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`the trial that is convenient for the witness, and/or to appear at the witnesses home ahead of the
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`trial. Plaintiff is also prepared to stipulate to supporting facts, such as the dates of his employment
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`and positions held at defendant’s school to shorten his testimony, and to provide frequent breaks.
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`However, precluding his trial appearance at all would severely prejudice plaintiff and his ability
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`to litigate this matter.
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`FILED: ORLEANS COUNTY CLERK 02/22/2024 12:55 PM
`NYSCEF DOC. NO. 272
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 02/22/2024
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`26.
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`Defendant insisted that Mr. Bow be deposed early in proceedings and withheld
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`hundreds of pages of relevant discovery solely in its possession from plaintiff until a week before
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`Mr. Bow’s testimony. Extensive discovery was conducted thereafter, and certain information was
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`revealed which plaintiff did not have the opportunity to explore with this witness. This includes
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`but is not limited to: testimony regarding Richard Pucher (an administrator at the school discussed
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`in the recent deposition of AB 524 Doe), and Fred Montag (a teacher) – other perpetrators
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`employed at the District during Mr. Bow’s tenure (NYSCEF Doc. No. 122, p. 66; NYSCEF Doc.
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`No. 123, pp. 71-72; NYSCEF Doc. No. 124, pp. 77-79; NYSCEF Doc. No. 125, p. 60); testimony
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`from former teachers raising issues concerning the administration’s failure to adequately inform
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`them of instances of child abuse by other teachers at the school and the teachers’ duties in light of
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`these occurrences (NYSCEF Doc. No. 122, p. 19, 43; NYSCEF Doc. No. 123, p. 69-72; NYSCEF
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`Doc. No. 125, pp. 60-61); testimony from former teachers raising issues concerning policies and
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`procedures of the school District for supervising teachers, including Houseman, following the
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`removal of other teachers for abuse allegations (NYSCEF Doc. No. 122, pp. 40-41; NYSCEF Doc.
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`No. 125, p. 69); testimony from a nonparty witness concerning the supervision of teachers,
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`including Houseman, or the lack thereof, during the school day, and issues surrounding policies
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`and procedures of the District in permitting students into the school early for specific teachers
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`(NYSCEF Doc. No. 126, pp. 64-65, 71-72, 79); testimony of companion plaintiff concerning the
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`policies and procedures of the District regarding removing students from school property
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`with/without parent permission at the end of a school day (relevant portions of AB 524 Doe’s
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`testimony is attached as Exhibit G); and, evidence from Houseman’s criminal file which raises
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`issues regarding the District’s policies and procedures once being notified of a teacher sexually
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`FILED: ORLEANS COUNTY CLERK 02/22/2024 12:55 PM
`NYSCEF DOC. NO. 272
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 02/22/2024
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`abusing a student and the steps the administration was required to take under such circumstances
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`(NYSCEF Doc. No. 244).
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`27.
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`Defendant’s argument that Mr. Bow is only a tangential witness because he was
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`not employed by defendant at the time of plaintiff’s abuse (Smith Aff., ¶30), ignores that plaintiff’s
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`negligent supervision claim does not require proof that defendant knew Houseman was abusing
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`plaintiff. It requires plaintiff to establish that defendant knew or should have known that
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`Houseman had a propensity for the conduct that led to plaintiff’s injury. It is undisputed that Mr.
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`Bow was an administrator who had oversight of Houseman for eight years, that the policies and
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`procedures in place from 1986-1987 had not changed since his departure, and that his testimony
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`is directly relevant to the issues in this case – as acknowledged by defendant when they served the
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`initial subpoena for his testimony.
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`28.
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`Judicial Law § 2-b(3) authorizes the Court to devise forms of proceedings as
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`necessary to carry into effect the powers and jurisdiction possessed by it. To avoid any risk of Mr.
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`Bow being exposed to illness and accommodate his limited mobility, plaintiff sees no reason that
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`his testimony could not be taken remotely. As noted in Nelson v. City of New York¸60 Misc.3d
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`353 (Queens Co. Sup. Ct. 2018), where testimony was needed from an elderly and frail individual,
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`advances in technology now allow such testimony to be conducted routinely and inexpensively
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`while protecting the confrontation rights of the parties. The Court further noted that such testimony
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`is more reliable than reading a deposition at trial. See also, People v Wrotten, 14 NY3d 33
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`(2009) [the court had authority to allow elderly complainant in criminal case to testify via live,
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`two-way television at trial, and such a decision is a case-specific determination]; United States v
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`Gigante, 166 F3d 75, 79 (2d Cir 1999) [permitting two-way video testimony of a key
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`FILED: ORLEANS COUNTY CLERK 02/22/2024 12:55 PM
`NYSCEF DOC. NO. 272
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 02/22/2024
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`prosecution witness too ill to travel and noting such testimony affords greater protection to parties
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`than use of deposition testimony].
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`29.
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`Based on the foregoing, defendant’s motion to quash should be denied in its
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`entirety, along with such other and further relief as the Court deems just and proper.
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`DATED:
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`Buffalo, New York
`February 22, 2024
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`/s/ Leah Costanzo, Esq.
`Leah Costanzo, Esq.
`Steve Boyd, P.C.
`Attorneys for plaintiff
`2969 Main Street, Suite 100
`Buffalo, NY 14214
`(716) 600-0000
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`TO: Ryan Smith, Esq.
`Webster Szanyi, LLP
`Attorneys for Defendant
`424 Main Street, Suite 1400
`Buffalo, NY 14202
`(716) 842-2800
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`FILED: ORLEANS COUNTY CLERK 02/22/2024 12:55 PM
`NYSCEF DOC. NO. 272
`
`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 02/22/2024
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`STATE OF NEW YORK
`SUPREME COURT : COUNTY OF ORLEANS
`___________________________________________
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`AB 511 DOE,
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`Plaintiff,
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`v.
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`LYNDONVILLE CENTRAL SCHOOL
`DISTRICT AND LYNDONVILLE
`ELEMENTARY SCHOOL,
`
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`Defendants.
`_________________________________________
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`CERTIFICATION PURSUANT TO 22
`N.Y.C.R.R. 202.8-b(c)
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`Index No. 20-46602
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` hereby certify pursuant to 22 N.Y.C.R.R. 202.8-b(c) that the word count of the attached
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`attorney affirmation is 2,310 words exclusive of the caption and signature block in compliance
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`with the word count limit set forth in 22 N.Y.C.R.R. 202.8-b(a).
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`DATED: February 22, 2024
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`/s/ Leah Costanzo, Esq.
`Leah Costanzo, Esq.
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`10 of 10
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