0001 1 2 SUPERIOR COURT OF NEW JERSEY LAW DIVISION - MONMOUTH COUNTY 3 DOCKET NO. MON-L-376506 --------------------------------------x 4 FILOMEN DACRUZ, ALECINA RODRIGUEZ, FRANCIELLE DACRUZ, 5 6 Plaintiffs, 7 -against- 8 MARTIN CAMMARANO, SEA COAST CHEVROLET, JOHN DOES 1-5, ABC 9 BUSINESS ENTITIES 105, 10 Defendants. 11 --------------------------------------x 12 13 14 15 Transcript of the proceedings, taken in 16 the above-entitled matter before DENISE L. 17 DANIELS, a Shorthand Reporter and Notary Public 18 of the State of New Jersey, at the offices of 19 John Desch Associates, 28 Newark Pompton 20 Turnpike, Riverdale, New Jersey, on Wednesday, 21 March 18, 2009, commencing at 2:24 p.m. 22 23 24 25 0002 1 A P P E A R A N C E S: 2 3 KEEFE BARTELS CLARK, LLC 170 Monmouth Street 4 Red Bank, New Jersey 07701 BY: GERALD H. CLARK, ESQ. 5 Attorneys for Plaintiffs 6 7 DWYER CONNELL, LisBONA, ESQS. 100 Passaic Avenue 8 Fairfield, New Jersey 07004 BY: CHARLES B. CAREY, ESQ. 9 Attorneys for Defendant Martin Cammarano 10 11 MONTGOMERY, CHAPIN & FETTEN, P.C. 745 Route 202/206 12 Suite 101 Bridgewater, New Jersey 08807 13 BY: JOHN S. FETTEN, ESQ. Attorneys for Defendant Sea Coast Chevrolet 14 15 16 17 18 19 20 21 22 23 24 25 0003 1 MR. FETTEN: Mr. Clark, it's 2:24. 2 This proceeding was scheduled to start at 3 2:00. We have been here and we have been 4 ready. 5 As we discussed many months ago, I 6 would make the file of John Desch 7 Associates, Inc. available for your 8 inspection in advance of the deposition. 9 Certainly I'm going to be asking you to pay 10 my expert witness from 2:00 on. 11 Secondly, it's my understanding that 12 the court reporter who is present, hired by 13 your office, Denise L. Daniels, she is not 14 a Certified Shorthand Reporter in New 15 Jersey. So, as I advised you outside, you 16 can proceed and question this witness using 17 Ms. Daniels, but I will object to the use 18 of any transcript, generated as a result of 19 this proceeding, at trial in any fashion. 20 MR. CLARK: What is your suggestion, 21 to do the deposition another day? 22 MR. FETTEN: I don't have a 23 suggestion. You can proceed at your peril, 24 and I reserve all other argument I may have 25 with respect to costs and fees related to 0004 1 the matter including any potential do-over. 2 But the choice is yours, Mr. Clark. 3 MR. CLARK: How long have you had the 4 surveillance video of our client? How long 5 have you guys had that? 6 MR. FETTEN: Are you talking to me? 7 I'm not here to answer questions today, 8 Mr. Clark. This is a deposition of an 9 expert witness. 10 MR. CLARK: Well, the choice is yours, 11 whether or not you want to answer that. 12 I mean, is it a recent video? Because 13 I'm wondering why you guys waited so long, 14 until like the eve of trial to advise that 15 you had a video, particularly when defense 16 counsel in this case, counsel for Sea Coast 17 and Cammarano advised that they had no 18 surveillance video and were not doing a 19 surveillance video. I think they 20 represented that to the Court on the 21 record. 22 MR. FETTEN: Well, since you weren't 23 there, I don't know how you would even know 24 that. 25 MR. CLARK: Know what? 0005 1 MR. FETTEN: About any representations 2 on the record. Are you sure about that, 3 Mr. Clark? 4 MR. CLARK: About what? 5 MR. FETTEN: You just said 6 representations were made on the record. I 7 would like to know when that record was. 8 Look, Jerry, we're not here to discuss 9 other issues related to discovery. We're 10 here to depose our expert witness, if you 11 choose to proceed, as I previously 12 indicated, and that's all we're here to do. 13 I'm not here to answer your questions about 14 other discovery matters here today. If you 15 would like to find out about it, then I 16 guess you can reproduce your client for a 17 deposition, and after it's completed, we'll 18 turn it over to you. According to case 19 law. 20 MR. CLARK: Case law allows you to 21 withhold discovery and not produce -- 22 MR. FETTEN: Jerry, stop. Please, 23 just do what you're here to do, okay. 24 MR. CLARK: Particularly when 25 representations are made to counsel, and I 0006 1 think on the record to the Court, that 2 there is no surveillance video, so I'm very 3 interested to get the dates of that 4 surveillance video. The date that it was 5 taken. 6 MR. FETTEN: It is now 2:31. 7 MR. CAREY: I'll just make a statement 8 that no representations were made by myself 9 regarding the surveillance video. 10 MR. CLARK: That's a hundred percent 11 correct. I a hundred percent agree with 12 that. And I'll bet a million dollars that 13 your office also didn't arrange the 14 surveillance video because if you had, you 15 probably would have produced it timely. 16 Off the record. 17 (Recess taken at this point.) 18 MR. CLARK: We're here today, and 19 Mr. Fetten is objecting to the deposition 20 moving forward and reserving his right to 21 bar the Plaintiffs from using the 22 deposition transcript because he believes 23 that the court reporter who is here today 24 is not a Certified Shorthand Reporter in 25 the State of New Jersey. 0007 1 He has offered a sort of 2 proceed-at-your-own-peril sort of 3 ultimatum, and I think that -- I think that 4 the objection is form over substance. 5 I think that the court reporter has 6 been a court reporter in New York 7 thirty-plus years. She's a notary in the 8 State of New Jersey but because Mr. Fetten 9 has given this sort of 10 proceed-at-your-own-peril and, you know, 11 I'm going to object at the time of trial 12 and bar your use of the deposition 13 transcript at the time of trial, we really 14 have no choice but to not proceed today and 15 come back on another day when we have a 16 court reporter who is not objectionable to 17 Mr. Fetten. 18 MR. FETTEN: It is not that the court 19 reporter is objectionable to me, Mr. Clark. 20 Let's make sure that we understand each 21 other. If the court reporter, as I 22 understand the rules, is not a Certified 23 Shorthand Reporter, then the transcript 24 itself is suspect, and I reserve my right 25 to object. 0008 1 If a Court says, no, Mr. Fetten, the 2 transcript is fine because she's a notary 3 or because she's a reporter in the State of 4 New York for thirty-plus years, then that's 5 it. It's not a problem. But I reserve my 6 right to object, and I'm letting you know 7 today it is your choice not to proceed, not 8 my choice, it's your choice. 9 Your office retained Merrill Legal 10 Solutions to supply a reporter. I didn't 11 do that. So don't misstate the facts. You 12 can make your arguments at any point in 13 time to the Court, I suppose, but let's 14 make sure we're clear on what I'm saying. 15 MR. CLARK: Okay, we'll reschedule him 16 for another day. 17 Does Mr. Carey have anything to add? 18 MR. CAREY: No. 19 MR. CLARK: How quickly can I get a 20 copy of this file? You know what, 21 actually, can I leave today with the copy 22 of this subfolder? It's small. And then I 23 can get the rest of the file in due course. 24 But this part of the file is small. I 25 don't know what's on this DVD. 0009 1 MR. FETTEN: We'll send it to you. 2 MR. CLARK: Can you make a copy? 3 MR. FETTEN: No. I said we'll send it 4 to you. 5 MR. CLARK: There's a copy machine 6 here, it's not many pages. 7 MR. FETTEN: There was a copy machine 8 in your office with your expert witness, 9 and we didn't get the stuff until today, 10 and that was taken -- what, three weeks 11 ago. 12 MR. CLARK: You took the option of 13 leaving and having it mailed. 14 Do we know what this is? 15 MR. FETTEN: When you depose him, you 16 can find out. 17 MR. CLARK: Can we maybe just ask him? 18 MR. FETTEN: No, you cannot. 19 MR. CLARK: We're going to get this 20 anyway when we take the deposition, you'll 21 be able to copy it? 22 MR. FETTEN: I'll copy it once we 23 authenticate it. 24 MR. CLARK: You're not going to make a 25 copy of this thing? 0010 1 MR. FETTEN: Are we still on the 2 record? 3 MR. CLARK: I would like to go off the 4 record, but the last time I said off the 5 record, you said, "No, everything is on the 6 record," to the extent it is a record. You 7 disagree that it's even a valid record. So 8 we'll just -- I would like to get a copy of 9 this. At least can you ask your guy what's 10 on this DVD that was in his file? 11 MR. FETTEN: I'll talk to him later 12 about it. 13 MR. CLARK: I guess we're off the 14 record. Is there any other housekeeping 15 stuff on the record? 16 MR. FETTEN: No. 17 (Time noted: 2:45 p.m.) 18 19 20 21 22 23 24 25 0011 1 2 C E R T I F I C A T E 3 4 I, DENISE L. DANIELS, a Shorthand 5 Reporter and Notary Public within and for the 6 State of New Jersey, do hereby certify: 7 That I reported the proceedings in 8 the within entitled matter, and that the 9 within transcript is a true record of such 10 proceedings. 11 I further certify that I am not 12 related, by blood or marriage, to any of 13 the parties in this matter and that I am 14 in no way interested in the outcome of this 15 matter. 16 IN WITNESS WHEREOF, I have hereunto 17 set my hand this______day of____________, 18 2009. 19 _________________________ 20 DENISE L. DANIELS 21 22 23 24 25