New York State Court of Claims

New York State Court of Claims

GELLER v. THE STATE OF NEW YORK, #2002-019-563, Claim No. 99402, Motion Nos. M-64480, CM-64852


Synopsis


State's motion, in part, for dismissal based upon alleged spoliation of evidence is denied. Claimant's cross-motion for summary judgment is denied.

Case Information

UID:
2002-019-563
Claimant(s):
SCOTT GELLER
Claimant short name:
GELLER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99402
Motion number(s):
M-64480
Cross-motion number(s):
CM-64852
Judge:
FERRIS D. LEBOUS
Claimant's attorney:
BOSCO, BISIGNANO & MASCOLO, LLPBY: John Bosco, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: London Fischer, LLPRichard S. Endres, Esq., of counsel
Third-party defendant's attorney:

Signature date:
August 20, 2002
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant State of New York (hereinafter "State") moves for the following relief: (1) dismissal of the claim based upon Claimant's spoliation of key evidence; (2) that Claimant be precluded from introducing any evidence at trial relative to the destroyed evidence; and/or (3) summary judgment pursuant to CPLR 3212 on the grounds that there is no issue of material fact regarding the State's liability. Claimant opposes the motion and cross-moves seeking an order: (1) granting partial summary judgment to Claimant on the issue of liability; (2) precluding the State from retaining any other expert other than Stephen A. Coulon; (3) precluding Mr. Coulon from testifying to an opinion at trial that deviates from his opinion as set forth in his affidavit/report; (4) requesting a hearing prior to trial to determine the qualifications of Mr. Coulon; or, in the alternative, (5) placing this case on this Court's "back burner" calendar pending resolution of the companion Supreme Court matter.


The Court has considered the following papers in connection with these motions:
1. Claim, filed December 3, 1998.
2. Verified Answer, filed January 5, 1999.
3. Notice of Motion No. M-64480, dated December 18, 2001, and filed December 28, 2001.
4. Affidavit of Richard S. Endres, Esq., in support of motion, sworn to December 18, 2001, with numerous exhibits attached thereto.
5. Memorandum of Law, dated December 18, 2001.
6. Notice of Cross-Motion No. CM-64852, dated March 7, 2002, and filed March 13, 2002.
7. Affirmation of John Bosco, Esq., in support of cross-motion and in opposition to motion, dated March 7, 2002, with numerous exhibits attached thereto.
8. Affidavit of Lance E. Robson, P.E., in support of cross-motion, sworn to February 27, 2002, with attachment.
9. Reply Affidavit of Patrick J. McCreesh, Esq., in support of motion and in opposition to cross-motion, sworn to July 9, 2002, and filed July 10, 2002, with attached exhibit.
10. Reply Memorandum of Law, in support of motion and in opposition to cross-motion, dated July 9, 2002.
11. Affirmation of John Bosco, Esq., in support of cross-motion and in opposition to motion, dated July 25, 2002, and filed July 26, 2002, with attached exhibit.

I. FACTS

On Monday, June 22, 1998, at approximately 3:00 p.m., Claimant, Scott Geller, age 19, was operating a vehicle with the permission of its owner, his mother, Gloria Colletti. Claimant was traveling at approximately 50-55 m.p.h. in the southbound passing lane of State Route 440 (West Shore Expressway) just south of Victory Boulevard in Staten Island, New York. Claimant swerved out of the passing lane into the median in order to avoid either a vehicle or object which had entered his lane. Claimant's vehicle struck the leading edge of a guide rail which impaled the length of his vehicle, first penetrating the driver's compartment and then exiting out the rear window, resulting in serious injuries to Claimant.


At the time of this accident, State Route 440 was the focus of a repaving and restoration project involving the State and City of New York for which El Sol Contracting and Construction Corporation (hereinafter "El Sol"), Grace Industries, Inc. (hereinafter "Grace"), as well as a joint venture between the two, were the primary contractors.[1] Work was conducted on weekdays starting at 8:00 p.m. and ended by the morning rush hour at 5:00 a.m. (State's Exhibit W, ¶ 6). No work was performed after the early morning hours of Saturday, June 20, 1998 through the time of this accident on the following Monday afternoon due to the routine weekend break. (State's Exhibit W, ¶ 7).


Claimant personally served a Notice of Intention upon the Attorney General's office on July 31, 1998. The Claim was personally served upon the Attorney General's office on November 25, 1998 and filed with the Clerk of the Court on December 3, 1998. The State filed a Verified Answer on January 5, 1999. This Claim contains numerous allegations of negligence by the State, far too many to repeat here, but include improper pinning of the leading edge of the guide rail; failing to provide temporary concrete barriers; improper location of the crossovers; failing to provide a clear zone area in the crossover; and creating an improper pavement edge drop off. (Claim, ¶ 60). In support of its motion, the State submits various deposition transcripts and affidavits from employees of the State and the primary contractors describing the project and the crossover construction in particular.


According to the State's Engineer in Charge of this project, Sorin Nour, crossovers were used in this project to redirect traffic off one side of the highway to the other side of the highway for the stretch of roadway where work was being performed and then back onto the original side. (State's Exhibit W, ¶ 13). Moreover, Mr. Nour avers that the construction of crossovers were achieved "[b]y resecting a section of the guide rails in the median of the highway for the length of the crossover as required by the State Design plans, removing top soil, placing a bituminous base, paving the crossover with asphalt, and then putting protective measures in place to make the crossover operational." (State's Exhibit W, ¶ 12). In addition, since the complete construction of a crossover took up to three days to complete, during the course of construction of a crossover "the ends of the resected guide rails, which face traffic would be pinned to the ground using 24 to 30 inch pins" at the end of a work day. (State's Exhibit W, ¶ 14). Also, orange barrels were placed along the edge of the roadway during the period of a crossover construction. (State's Exhibit W, ¶ 15).


I. State's motion for dismissal and/or sanctions based upon spoliation of evidence

The essence of the State's argument here is that Claimant's parents destroyed the vehicle and guide rail and that these actions should be imputed to Claimant. Furthermore, the State argues it is irreparably damaged from defending itself in this litigation due to the absence of this evidence, thereby warranting dismissal and/or sanctions. In opposition, Claimant argues, among other things, that Claimant is not responsible for the actions of his parents; the vehicle did not belong to Claimant; that there has been no proof that the guide rail was destroyed; adequate photographs exist to enable expert testimony relative to this evidence; and that Claimant's own expert never inspected the evidence which removes any element of prejudice or unfair advantage for one side over the other.


The following facts are undisputed. At the time of this accident Claimant was driving his mother's vehicle, a 1988 Plymouth Reliant (hereinafter "Vehicle"). It is further agreed that Claimant was immediately transported after the accident to St. Vincent's Hospital by emergency medical personnel. For the week immediately following the accident, Claimant remained in the intensive care unit and was unable to speak. (State's Exhibit T, p 31). Claimant remained in the hospital for a total of 21 days. On June 23, 1998, the day after the accident, Mrs. Colletti contacted the Bosco law firm and retained counsel on her son's behalf. (State's Exhibit T, pp 21 & 41). Also, on June 23, 1998, Mr. Colletti visited the accident scene and took photographs which he conceded were in contemplation of future litigation. (State's Exhibit U, p 15). Soon after the accident, the Vehicle was towed by Staten Island Towing Service, Inc. to its shop in Staten Island. On June 29, 1998, Mr. Colletti photographed the Vehicle at the towing place. On July 2, 1998, the Vehicle was released to the Collettis. On July 6, 1998, BayView Auto Wrecking acquired the Vehicle with instructions from the Colettis to destroy the same. On August 6, 1998, the Vehicle was destroyed by BayView Auto Wrecking.


In this Court's view, it is appropriate to address the missing guide rail and Vehicle separately. With respect to the missing guide rail, Claimant properly points out that the State has failed to establish with proof in evidentiary form which, if any, portion of the guide rail was destroyed. Notably, the affidavit of Michael Finelli, an owner of Bayview Auto Wreckers, documents only the destruction of the Vehicle, without reference to a guide rail. (State's Exhibit AA). Additionally, the Court notes that in some of the photographs taken at the scene there is what appears to be a sizeable section of guide rail, perhaps 10-15 feet in length, sticking out the rear window of the Vehicle. (State's Exhibit DD). However, photographs taken at the junkyard show only several feet of guide rail sticking out the back of the Vehicle. (State's Exhibit CC). It is unclear whether a portion of the guide rail was cut off at the scene (after the taking of the first set of photographs) and, if so, by whom and the ultimate disposition of that piece. In short, there is no proof that either the Collettis or Claimant disposed of the guide rail, let alone the entire section of guide rail depicted in State's Exhibit DD. Accordingly, this Court cannot conclusively determine whether or what portion of the guide rail has been destroyed or, for that matter, by whom.


Turning now to the Vehicle itself, both Mr. and Mrs. Colletti have conceded that they authorized the destruction of the Vehicle. It is well-settled that the "[s]poliator of key physical evidence is properly punished by the striking of its pleading." (DiDomenico v C & S Aeromatick Supplies, 252 AD2d 41, 53). Generally, spoliation sanctions "[a]re not limited to cases where the evidence was destroyed willfully or in bad faith, since a party's negligent loss of evidence can be just as fatal to the other party's ability to present a defense [citations omitted]." (Squitieri v City of New York, 248 AD2d 201, 203). An analysis of the relevant case law identifies various factors that should be considered in determining whether spoliation sanctions are appropriate, including: (1) who destroyed the evidence; (2) whether a key piece of evidence was destroyed; (3) whether the evidence was destroyed before the adversary had an opportunity to inspect the same; and (4) whether the opposing party is prejudiced in their ability to present a defense. (Kirkland v New York City Hous. Auth., 236 AD2d 170; Squitieri, 248 AD2d 201; DiDomenico, 252 AD2d 41). Moreover, the destruction of evidence with the awareness of pending litigation is an additional factor to be considered. (Kirkland, 236 AD2d at 174). Finally, it is well-settled that the propriety of imposing spoliation sanctions is within the broad discretion of the trial court. (Horace Mann Ins. Co. v E.T. Appliances, 290 AD2d 418, 419).


In this Court's view, the first factor of who destroyed this Vehicle is the dispositive factor in this instance. Stated another way, the limited question presented here is whether the Collettis' actions in destroying the Vehicle should be imputed to Claimant. This Court answers the question presented in the negative. Initially, for purposes of this motion, the Court will accept the State's argument that the Vehicle is a key piece of evidence.[2] Nevertheless, there is no proof indicating Claimant's involvement in the decision-making process to destroy the Vehicle.


This Court finds that the cases cited by the State favoring dismissal and/or spoliation sanctions can be distinguished based upon this factor, namely that Claimant was not responsible for the destruction of the Vehicle. In this Court's view, this case is most similar to McLaughlin v Brouillet, 289 AD2d 461. In McLaughlin, the defendant driver destroyed the vehicle without the plaintiff-passenger's knowledge. Neither side's experts had inspected the vehicle. The third-party defendant, Chrysler, moved against plaintiff for dismissal due to the vehicle's destruction. The Second Department reversed the trial court's dismissal finding that "[p]laintiff, who was prejudiced along with Chrysler by the vehicle's destruction, was not responsible for the spoliation." (McLaughlin, 289 AD2d at 461). (Compare Andersen v Schwartz, 179 Misc 2d 1001 [spoliations sanctions granted although non-party responsible for destruction; however plaintiffs had already inspected the vehicle and the court noted that plaintiffs should have both notified and included GM in that inspection]). In this Court's view, the familial relationship between Claimant and the Collettis does not warrant a different conclusion. For the reasons stated above, this Court finds that Claimant is not responsible for the destruction of the Vehicle and that neither dismissal nor sanctions are appropriate under these circumstances.[3]


With respect to the remaining factors, although the State's expert did not have an opportunity to examine the evidence, neither did Claimant's expert. As such, the parties are on an equal footing since both experts will be relying primarily on photographs, as well as other available evidence and testimony. In other words, Claimant has gained no advantage from the destruction of the Vehicle and, for that matter, may actually be the one who suffers prejudice since the burden of proof rests with him at trial.


Consequently, for the reasons stated above, this Court finds that the State's motion for dismissal and/or sanctions based upon the alleged spoliation of evidence should be denied.



II. Summary Judgment Motions

The Court will address the parties respective motions for summary judgment separately since they address different issues. Generally, however, on a motion for summary judgment, the moving party must present evidentiary facts that establish the party's right to judgment as a matter of law, while the opposing party must present evidentiary proof in admissible form that demonstrates the existence of a factual issue. (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068). Furthermore, the Court must accept the non-moving party's evidence as true and grant them every favorable inference. (Hartford Ins. Co. v General Acc. Group Ins. Co., 177 AD2d 1046, 1047).


A. State's Motion for Summary Judgment

The State argues that it "[i]s entitled to summary judgment because there can be no reasonable dispute that Claimant's vehicle left the roadway through no fault of the State and because the undisputed testimony is that the guiderail [sic] Claimant struck was last observed to be in proper position and adequately protected." (State's Memorandum of Law, p 8).


The Court cannot locate in Claimant's papers any genuine dispute to the contention that the State was not responsible for Claimant's vehicle leaving the roadway.[4] Nevertheless, such a conclusion does not warrant dismissal of this Claim. Claimant has stated sufficient facts and theories of negligence, including the failure to properly pin the leading edge of the guide rail or to protect the crossover during construction, etc. to proceed under the second-impact theory. Under a second-impact analysis, the fact that no negligent act of the State caused Claimant's vehicle to leave the roadway is irrelevant, rather "[t]he point to be proven [would be] whether the guardrail was inadequate and, if so, whether such inadequacy was a substantial factor in aggravating [Claimant's] injuries [citations omitted]." (Matter of Kirisits v State of New York, 107 AD2d 156, 158; see also Gutelle v City of New York, 55 NY2d 794, 796 ["That the existence of the allegedly defectively designed abutments did not cause plaintiff's vehicle to leave the roadway in the first instance is of no moment. As long as it can be demonstrated that the abutments were a substantial factor in aggravating plaintiff's injuries, a cause of action may be upheld (citations omitted)."].


Nor does the Court agree with the State's characterization that there is "undisputed testimony" that the guide rail was in proper position and adequately protected. In this Court's view, a review of the State's own submissions reveal factual inconsistencies that create questions of fact precluding summary judgment. For instance, in the deposition testimony of Elias Hazem, an El Sol superintendent, he states that the "rail" was sticking out on Saturday morning, and that Robert Hartig was going to be sure it was properly pinned. (State's Exhibit V, pp 70-73). Mr. Hazem further stated at his deposition that four pins were normally used and that after pinning the height of the guide rail should be "flush" to the ground. (State's Exhibit V, p 31). The State also submits an affidavit from David Carter, a Civil Engineer employed by the State whose duties included inspection of the contractor's work and who inspected this crossover on June 20, 1998 which was two days before this accident. However, in Mr. Carter's deposition transcript, he describes only seeing that the guide rail had been pinned with "two or three" pins, several inches of which were visible. (State's Exhibit N, pp 51-52; emphasis added). Mr. Carter also acknowledged his lack of prior crossover construction experience or training. (State's Exhibit N, pp 15-16). There is also an affidavit from Robert Hartig, a Grace superintendent, who avers that he personally instructed laborers to pin the leading end of the guide rail and handed them a sledge hammer and several pins to accomplish this task. (State's Exhibit Y, ¶ 5). However, there is no proof in evidentiary form from anyone who actually performed the pinning. Based upon the foregoing this Court cannot conclude as a matter of law that this guide rail was properly pinned. In sum, this Court finds questions of fact exist with respect to whether the leading edge of the guide rail was properly pinned and/or adequately protected. With respect to the remaining issues, given the "competing and contradictory conclusions" of the experts, there clearly exist questions of fact for resolution at trial. (Harrington v City of Plattsburgh, 216 AD2d 724, 725; Martin v Reedy, 194 AD2d 255, 258-259).

Consequently, the State's motion for summary judgment is denied.


B. Claimant's Cross-Motion for Summary Judgment

Claimant argues that "[t]he happening of the accident proves ipso facto that the precautions taken to make the hazardous upstream end rail crashworthy failed utterly and completely to the extreme prejudice of the plaintiff." (Affirmation of John Bosco, Esq. dated March 7, 2002, p 35). In this Court's view, although not articulated as such, Claimant has made what amounts essentially to an argument relying upon the doctrine of res ipsa loquitur.[5] However, the Second Department has indicated the impropriety of finding liability on a summary judgment motion based upon res ipsa loquitur:

[w]ithout deciding whether the doctrine of res ipsa loquitur is applicable in this case, we note that the doctrine is a rule of evidence which merely provides a permissible inference of negligence rather than a presumption [citations omitted]. Therefore, application of the doctrine as a basis for awarding summary judgment is inappropriate [citations omitted]).


(Capolongo v Giant Carpet, 292 AD2d 331, 331; see also Martinez v City of New York, 292 AD2d 349). As such, this Court will not undertake a res ipsa analysis at this juncture. In any event, upon a thorough review of the voluminous record, this Court finds substantial questions of fact exist in relation to all of Claimant's allegations including, but not limited to, improper pinning of the leading edge of the guide rail; failing to provide temporary concrete barriers; improper location of the crossovers; failing to provide a clear zone area in the crossover; and creating an improper pavement edge drop off, the resolution of which must be left for determination at trial.


Consequently, Claimant's cross-motion for summary judgment is denied.


III. Qualification of State's Expert Witness

Claimant seeks various forms of relief all relating to the State's identified expert, Stephen A. Coulon, including the following: (1) precluding the State from retaining any other expert other than Mr. Coulon; (2) precluding Mr. Coulon from taking a position at trial other than set forth in his affidavit; and (3) requesting a hearing - a voir dire or Frye hearing - prior to trial to determine the qualifications of Mr. Coulon. This portion of Claimant's cross-motion must be denied as well.


Initially, the overall tenor and verbose nature of Claimant's papers, most notably in relation to arguments involving Mr. Coulon, warrant mention. In this Court's view, counsel's initial 56 page affirmation contained such repetitive commentary and unnecessary melodramatics that they did nothing but interfere with this Court's ability and efficacy, and presumably opposing counsel's as well, in isolating the cogent legal arguments contained therein. Counsel is more than capable of addressing the issues at hand, including the credibility and qualifications of an expert witness, without gratuitous comments and analogies and this Court fully expects that future submissions and presentations will steer clear of such superfluous comments.[6] Counsel is reminded of his duties and responsibilities of civility under the Professional Code of Responsibility. (Code of Professional Responsibility EC 1-5 & EC 7-24; DR 7-101 & 7-102 [22 NYCRR 1200.32 & 1200.33]; 22 NYCRR Part 1200, Appendix A. Standards of Civility; and 22 NYCRR 130-1.1).


That having been said, the Court will now turn to the substance of Claimant's motion relative to the State's expert, Stephen A. Coulon. The first affidavit submitted by Mr. Coulon was attached to the State's original motion and concluded that without the missing guide rail and Vehicle that Mr. Coulon could not ascertain the cause of the guide rail's failure. (State's Exhibit EE). In opposing this conclusion, Claimant's counsel obtained Mr. Coulon's current and past curricula vitae, as well as transcripts from prior court proceedings in which Mr. Coulon's qualifications were challenged. (Claimant's Exhibits A-L). In reply, the State denies some but not all of counsel's challenges.

While Claimant submits some past cases containing interesting inquiries into Mr. Coulon's training and qualification, this Court cannot ignore the State's unrebutted reply that Mr. Coulon was ultimately qualified as an expert in all but one of those very same cases. (Exhibit A to State's Reply, ¶ 1; State's Exhibits D, F, J and L; see also Horvath v State of New York, Ct Cl, January 2, 2001, Ruderman, J., Claim No. 91381). This is not to say however, that there are not summary judgment motions upon which a purported expert has been found unqualified (Hofmann v Toys "R" Us-NY Ltd. Partnership, 272 AD2d 296; New York Central Mut. Fire Ins. Co. v Turnerson's Elec., 280 AD2d 652, 653), only that such circumstances are not presented here. In sum, this Court finds that Mr. Coulon's curriculum vitae and supporting affidavits set forth sufficient information for this Court to accept his affidavits on this motion. Rather, the arguments presented here appear to address the ultimate weight to be accorded to Mr. Coulon's testimony at trial, rather than its admissibility in the first instance. The Court also agrees that no circumstances warranting the application of judicial estoppel relative to Mr. Coulon's testimony at trial have been presented. In this Court's view, Claimant's challenges to Mr. Coulon's qualifications are best left to voir dire of the witness prior to his testimony at trial and, if ultimately qualified as an expert, then upon cross-examination.


Nor has either party run afoul of CPLR 3101 at this juncture. CPLR 3101 (d) (i) states in pertinent part that a party shall disclose in reasonable detail the subject matter, substance of facts and opinions, qualifications and a summary of the grounds for said opinion. Additionally, the statute states:

[h]owever, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just.


This case has yet to be scheduled for trial. In the event the State attempts to retain a different expert within an insufficient period of time before trial, whenever that may be, then the Court will consider any appropriate motion on the merits at that time.


Consequently, Claimant's requested relief relative to the State's expert, Stephen A. Coulon, is denied.


IV. Calendar status

In the alternative, Claimant has requested that this case be placed on this Court's "back burner calendar" pending resolution of the companion Supreme Court matter. The State objects and notes that there is no authority to place a case on back burner status since the Court of Claims no longer has a reserve calendar. (Rye Psychiatric Hosp. Center v State of New York, 145 Misc 2d 706, 711-712). The State is correct that the Court of Claims no longer carries a reserve calendar. Nevertheless, this Court has at times approved the use of a conditional order of dismissal when agreed upon between adversaries. Here, however, the Court will not force one party to agree to such a disposition. A party certainly has the right to a timely and final disposition in this Court, regardless of the timing of companion matters. This portion of Claimant's motion is denied.


Accordingly, in light of the foregoing, it is ORDERED that the State's motion, Motion No. M-64480, and Claimant's Cross-Motion No. CM-64852 are DENIED in their respective entireties. Claimant is directed to file a Note of Issue as soon as practicable in accordance with 22 NYCRR 206.12.


August 20, 2002
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]There is a companion case currently pending against these parties in Richmond County Supreme Court.
[2]An argument can be made however, as outlined by Claimant, that since this case does not involve allegations of an intrinsic defect in the car itself the Vehicle is not a key piece of evidence.
[3]Although the Collettis' actions immediately after the accident (e.g., contacting an attorney, taking photographs), may indicate that the Collettis were litigation savvy, these actions were nothing more than what any other concerned parent would do under the circumstances, namely taking all necessary and appropriate steps to protect their son's legal interests since he was unable to do so on his own behalf. There is no doubt that the Collettis destroyed the Vehicle. However, there is nothing in this record from which this Court could conclude that the Collettis were engaged in some type of conspiracy to "do away" with the Vehicle in order to give some undetermined advantage to their son in litigation. How the Collettis could even know at such an early stage whether the Vehicle would help or hurt their son's case is but one reason the Court does not see any hidden conspiracies in the scenario presented. Furthermore, as the Collettis both stated in their respective depositions, the storage fees for the Vehicle were becoming unduly expensive, as well as the reality that the Vehicle was an unwanted reminder of the tragedy that had befallen their son.
[4]See discussion relative to the substance and style of Claimant's papers, infra III, pp 13-14.
[5]The doctrine of res ipsa loquitur allows, but does not compel, an inference of negligence and causation upon the mere happening of an accident if and when the following three conditions are satisfied: (1) the event is of a kind that would not ordinarily occur in the absence of someone's negligence; (2) the agency or instrumentality causing the event was within defendant's exclusive control; and (3) the event was not caused by any voluntary action or contribution of claimant. (Ebanks v New York City Tr. Auth., 70 NY2d 621, 623). Res ipsa loquitur applies only where the actual or specific cause of an accident is unknown although all possibilities need not be excluded. (Kambat v St. Francis Hosp, 89 NY2d 489, 494).

[6]A sample of counsel's 56 pages of rambling statements which this Court deems unnecessary include the following:

#
"[w]hereas Lincoln was the Great Emancipator, Coulon is a great exaggerator" (Affirmation of John Bosco, Esq. dated March 7, 2002, p 7);
#
"Doesn't it seem that Coulon will say anything regardless of the truth" (Affirmation of John Bosco, Esq. dated March 7, 2002, p 8);
#
"Doesn't that sound great? Coulon toots his own horn better than Louie Prima tooted his! But Coulon's tune just makes me sick!" (Affirmation of John Bosco, Esq. dated March 7, 2002, p 8).
#
"Coulon's claim...is pure, unadulterated hogwash! Let me shout on the top of my lungs that he is a gross exaggerator, an unmitigated fabricator, willing to say anything but seldom the truth. Coulon is as much of an engineer as Donald Duck is an engineer!" (Affirmation of John Bosco, Esq. dated March 7, 2002, p 9).