`VIA NYSCEF and E-MAIL
`
`Hon. Damaris E. Torrent, A.J.S.C.
`Supreme Court, Westchester County
`111 Dr. Martin Luther King Jr. Blvd.
`White Plains, New York 10601
`
`
`
`Dear Justice Torrent:
`
`
`Re: Apple Metro et al v. Lineage Foodservice Solutions
`Index No.: 60150/2020
`
`
`
`80 Exchange Street | P.O. Box 5250 | Binghamton NY 13902-5250 | www.hhk.com
`
`ALEXANDER D. RACKETA
`Partner
`aracketa@hhk.com
`P: (607) 231-6748
`F: (607) 723-6605
`
`
`October 18, 2022
`
`As you know, we represent the defendant/third-party plaintiff Lineage Foodservice
`Solutions in this matter. We write in response to the request by plaintiffs/third-party defendants
`(“Applebee’s Franchisees”) for an adjournment of the deposition in this matter pending the
`Court’s determination on the currently pending motion for spoliation sanctions.
`
`Lineage opposes the adjournment of any depositions. First, we will note that the
`Applebee’s Franchisees have actually served three deposition subpoenas on third parties for
`testimony in this matter after the Applebee’s Franchisees moved for spoliation sanctions. The
`Applebees’ Franchisees could certainly have avoided at least that aspect of the “unnecessary
`litigation” they now complain of simply by declining to serve those subpoenas.
`
`With respect to the balance of the depositions in this case (both party depositions and
`additional third-party depositions, which are being pursued by Lineage), the Applebee’s
`Franchisees argue that determination of the pending motion will potentially limit or obviate the
`need for such depositions. This is in part based on the theory that if Lineage is found to have
`spoliated some evidence in support of its claims, it should be precluded from offering any
`evidence on those theories, or alternatively, should have its pleadings stricken.
`
`Of course, those are only the most severe sanctions available to the Court on such a
`motion. Per the parties’ own initiative and this Court’s prior Order, five subpoenas are currently
`pending in four different jurisdictions. Their collective return dates are imminent. It is eminently
`possible that the evidence that is claimed to have been spoliated will prove available from third
`parties, will be found to have likely been favorable of Lineage and therefore not prejudicial to
`the Applebees’ Franchisees, or will be determined to be irrelevant to the ultimate merits of this
`case. This was exactly the course suggested in the parties’ prior compliance conference with the
`Court Attorney. Lineage therefore suggests that the opposite course is the prudent one: the
`parties should continue to conduct discovery, including depositions and documentary discovery
`
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`
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`BINGHAMTON, NY ALBANY, NY ELMIRA, NY ENDICOTT, NY NEW YORK, NY ONEONTA, NY SYRACUSE, NY
`WHITE PLAINS, NY SADDLE BROOK, NJ CONCORD, NH SCRANTON, PA TUNKHANNOCK, PA BOYNTON BEACH, FL
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`from both parties and third parties, before it is determined what sanction, if any, is necessary.
`This is entirely consistent with Lineage’s position on the pending motion, where it argued at
`length that the Applebees’ Franchisees’ spoliation motion should be denied as premature pending
`the completion of discovery.
`
`If the Court has any further questions, please do not hesitate to contact our firm. Thank
`
`
`
`
`Respectfully yours,
`
`HINMAN, HOWARD & KATTELL, LLP
`
`
`
`By:
`
`Alexander D. Racketa
`
`
`
`Peter M. Ripin, Esq. (via NYSCEF only)
`Lineage Foodservice Solutions (via email only)
`
`you.
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`/adr
`Cc:
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