WT-106C - May 25, 2023 Hearing - REFERENCE TRANSCRIPT (NAMES CORRECTED) Matter: HP 6086/2020 - Christian Gray v. American Package Co., Inc. - Hon. Remy Smith Court: Civil Court of the City of New York, County of Kings - Part B / Room 409 Audio: FTR civkin-ftr409 - 2023-05-25, 9:30 AM appearance - session GUID 01d98eefe980ca80 - runtime ~15:41 ---------------------------------------------------------------------- PROVENANCE / DISCLAIMER - READ FIRST This is NOT a certified court transcript. The text below was auto-generated by Plaud (an automated speech-to-text application) from the .mp3 derivative of the court's FTR audio. After generation, proper names and speaker labels were corrected by hand against the case record to align them with reality - for example, the app's "Kozic / Kosik / Kosig" was corrected to Kozek, "Scholar / Scallop / Schuyler" to Skaller, "Sandercok" to Sandercock, "Olmstead" to Olmsted, "SERCO / SERPRO / Surf Pro" to SERVPRO, and "NiceF" to NYSCEF. No other editing was performed: the spoken content is reproduced as the app transcribed it, including false starts, filler, and occasional garbled words, and has NOT been certified for word-for-word accuracy. One court-staff name was indiscernible and is shown as [the clerk]. The evidentiary source of record is the court's native FTR audio (.wma). A certified transcript may be ordered from an OCA-authorized transcription vendor; this reference aid does not substitute for one. Speakers: THE COURT - Hon. Remy Smith MR. SKALLER - David Skaller, counsel for respondent/owner (American Package Co.) MR. KOZEK - Michael Kozek, counsel for petitioner (Christian Gray) (Christian Gray present.) ---------------------------------------------------------------------- 00:00:00 THE COURT So my concern was that you are not able to hear me, Mr. Kozek, Mr. Gray, and Mr. Skaller. Can you let me know? 00:00:07 MR. SKALLER I can hear you now. 00:00:10 THE COURT Now I think uh Mr. Kozek cannot hear me, Mr. Gray is nodding his head, so let me just double check. I can hear you now - oh, you can? Okay, great. So I had - oddly, I mean, it's not you who did the motion, Mike, but we have all the papers. Did you feel the need to supplement or alter them in any way? I mean, have we - talking about resolution at all, Mr. Skaller, with regards to the Olmsted finding? 00:00:34 MR. SKALLER Yeah, we - um, we actually have been trying to resolve this ever since the motion was made. Um, I tried with Miss Sandercock and then Mr. Kozek was substituted in. Right. And actually, um, we went to the apartment on March twenty-first with our experts, um, and - we thought, I thought we had an agreement on what the steps forward were going to be. There is more work that has to be done. We admit there's more work that has to be done. That's not in dispute. And I think that we came to an agreement as to this, the amount of work and the scope of work. There are a couple of things that we just have to iron out. There's a um, like an attic area that we're waiting to hear back from Mr. Kozek and his client on. 00:01:23 MR. SKALLER And there was a wall. There was a front wall that, um, we just had to figure out how to handle that part of the wall. So other than those two things, I think we're in agreement on everything. So on the twenty-first, when the - when the experts, Mr. Kozek and I and Mr. Gray were there, uh, we agreed that we're going to do six or seven probes, um, to see if there was any indication of mold. And I thought - and I'm only speaking for myself, I'm not going to speak for Mr. Kozek - I thought it was agreed that SERVPRO was going to make those probes, they were going to take pictures and video inside those probes and send it to our experts to see if there was any indication of mold. When SERVPRO went - 00:02:19 MR. SKALLER Uh, Mr. Gray stopped them after I think a probe or two because they were not taking material to test. And Mr. Kozek and I went back and forth on - I thought that we agreed it was going to be a visual first, and if something else needed to take place, it would take place. And so that's where we are now. Um, we have a disagreement on that particular approach. Uh, I think Mr. Kozek, you know, indicated to me he thought that this testing should be done on all the probes. And I'm not disagreeing with him necessarily - if the visuals, which both experts said were fine, show that there's mold, then we would do the testing. But if the visuals showed no mold, there's no need to test those particular areas that were probed. And then I reached out to Mr. Kozek again. 00:03:14 MR. SKALLER Um, I believe it was yesterday or the day before, trying to see if we could come to a resolution. And on that particular last email, I didn't receive a response. He and I have been communicative and uh, really trying to work this out. Um, I was just taken aback because it was really never discussed about testing. And my expert said, you know - I forwarded him Mr. Kozek's emails. And he said, yeah, if the visuals show that there's indications of mold, then yeah, they should be tested for sure. So that's where we are. I don't really - Mr. Kozek said he wanted to speak with you. I'm not sure necessarily about what, because we're trying to - we've dealt with each other for years and years, and we were trying to do it amongst ourselves. 00:04:05 MR. SKALLER So that's what I have to say. 00:04:07 THE COURT Before passing the floor to Mr. Kozek, I am just going to throw out there: if they're already in there doing probes, is it the end of the world to just send a couple of them for testing? How much more expensive is it? 00:04:18 MR. SKALLER Um, I have no idea, and I can certainly find out. Unfortunately, um, when SERVPRO was there - um, because they were also there, not just the experts, but SERVPRO was there at this meeting on March twenty-first. Um, they had the same distinct understanding that it was going to just be probes and visual. Um, so would I. 00:04:50 THE COURT Only reason I am asking is because I am looking at this in a trial context, and I am thinking of this person up there. And I am saying, well, did you - did you visualize? Yes, there was no mold. Would you take a probe? Yes. Did you test? No. And I am just thinking, well, if he could say yes to that and then the result is nothing, that makes him look better. I am just thinking that far in advance, and I know the goal is to not get to that point, but I am wondering if a cost-benefit analysis doesn't make some sense - just to maybe send a couple of them for testing if they're already doing the probes. 00:05:16 MR. SKALLER You know what? I think that's a fantastic suggestion. Um, I am certainly receptive to - you know, to bringing it up with my client, my expert, and SERVPRO. Um, I don't know if that's sufficient for Mister Kozek as far as - you know, if it's less than all of the probes that are getting tested, and then it's a matter of which ones. I mean, I'm certainly amenable to having like two of the probes, um, tested, and I'll even let them choose which two. Um, that seems to be a reasonable compromise. All right. 00:05:49 THE COURT Let's pass the floor to him and see what he has to say. Mike, go ahead. 00:05:54 MR. KOZEK Uh, good morning, your honor. Um, yeah, I mean, I would agree, you know, with David, that Mr. Skaller - excuse me, that's my fault. 00:06:04 THE COURT I call you all by your first names. 00:06:07 MR. KOZEK We've worked together for many years, and we've tried to, um - since I got involved in this, tried to, you know, get this resolved. You know, this was handled by Miss Sandercock for many years, and um, I got involved in the fall. Um, obviously there's a lot of history here. Um, the - you know, the purpose of the motion was to determine whether or not there was compliance with this stipulation. Uh, this so-ordered stipulation. And you know, we would require a hearing. And if we were right, um, an order contemplates an order from your honor or from the court requiring, you know, that the remaining work contemplated in the original um - 00:06:56 MR. KOZEK - stipulation and settlement to be completed. There are some other complexities to the issue, which are beyond just simply this case. Which is that there is some language in the agreement about release of claims that - the owner in a related case at the Loft Board regarding harassment is claiming waived any claims that my client could make with respect to harassment related to this work. And that makes things difficult for us at this point to get things resolved on just saying, well, it's just going to be - 00:07:50 MR. KOZEK - complete some of the remaining work per the settlement. Because we don't believe, one, that that language was meant to apply to this other case. But even if it was, that waiver was based upon the consideration provided for in the settlement. And you know, our belief is that that consideration was never provided. 00:08:16 THE COURT So let me interrupt you for a minute and ask you - are you pretty much saying that without a global resolution, you're not really that interested in making sure this portion of it goes away, for lack of a better expression? 00:08:31 MR. KOZEK What I'll say is this: our belief is that the settlement requires certain work to be done. Period. Right? And that work was not done. Um, but at this point, you know - look, we've tried to work through a settlement and for various reasons, it hasn't gotten resolved as of today. Um, you know, the SERVPRO probes - you know what I said to Mr. Skaller was, I didn't see how you can rationalize saying that probes are to be done if it's not - 00:09:09 MR. KOZEK - to serve some purpose in terms of determining whether or not there's, you know, active mold infiltration in those areas. 00:09:16 THE COURT Yeah, that makes sense. Yeah. 00:09:17 MR. KOZEK So, you know, that's the trouble that I had with it. And my understanding of what happened that day was that SERVPRO was there and didn't really have any information about what was actually to happen after the probes were taken. And I said this to Mr. Skaller - it's not just cut a hole in the wall or in the ceiling and then leave, right? It's to determine whether - I mean - 00:09:38 THE COURT He seems to be willing to maybe do some tests. But look, if you're at a point now where - and I'm only pushing this along because I have two trials I have to get to - but, um, if you're saying that you think at this point, just take the motion, you don't have anything additional to say beyond what Margaret already said, and you, Mr. Skaller, have your papers in, and in the interim if you want to keep, you know, trying to improve this situation, no one's stopping you. But I'm getting from Mike that he wants me to just take the motion. And I don't think anybody has anything else to put in on it other than Mike, because he's taking it over from Margaret. 00:10:11 MR. KOZEK Yeah, I think that's right. We're not foreclosing the idea of like a resolution here, but you know, we want to get this process moving forward. I think that the agreement does require, you know, um, or may require ongoing access to complete any remaining work. 00:10:29 THE COURT Mhm, yeah, obviously. 00:10:30 MR. KOZEK I just can't, you know, in discussing with my client - you know, um, hold off on moving forward with the motion. I think that the papers are sufficient. I've reviewed everything. The reply affidavit from Mr. Olmsted, I think, is very revealing and is comprehensive in terms of his findings of, you know, what was not completed for the agreement. 00:10:56 MR. SKALLER Um, I just have to say, your honor, that - sure, I'm just blindsided by this. First of all, Mr. Kozek has never said anything about a global settlement, or he has never discussed with me anything beyond trying to finish the work in the apartment. So that's the first thing. So I wasn't aware that - well - 00:11:17 THE COURT I'm going to interrupt you on one point here. I'm going to say that resolution of this motion is not going to really, I think, do much on that at all. And I don't particularly like that style of chess, as it were, in these cases, but it is what it is. So, if it ultimately is going to work for me to handle this small portion with my limited jurisdiction, and then you use that as some launching point for another move later on - fine. But that's the strategy he's using, and whether it works to his client's benefit or not, I guess we'll remain to see. But I think in terms of - I mean, you both know each other better and can continue talking. But I think at this point I don't see the - 00:11:56 THE COURT I don't think it makes sense at this point. I am hearing what you are saying, and I think I can incorporate that into a decision if it makes the most sense. 00:12:04 MR. SKALLER But let me just interrupt. I want to make it easy for you. 00:12:06 THE COURT No, I interrupted you, so you continue. No - 00:12:08 MR. SKALLER No, no, no - but you are the judge, you are allowed. Um, but: we acknowledge the work was not completed. We acknowledge it, right? I will acknowledge that the affidavits that I have are not accurate. I found that out after the fact. Um, that they're not accurate. So we do have work to do. So - you know, what's the decision? I mean, I will stipulate that we have to do the work. That's fine. I mean, and that the work was not completed. My client paid SERVPRO and their expert to do the work pursuant to the scope of work. They were present, you know, during this, and the work wasn't done. My client is dumbfounded that he paid - 00:12:52 MR. SKALLER - for a scope of work to be done and it wasn't done. Some - a lot of work was done, but there's still plenty of work that needs to be done. Which is why - I don't think the motion, you know - we'll stipulate to doing the remainder of the work. And we have a scope of work that I thought we agreed to, um, before. So, you know - so I don't know that submitting the motion makes - you know, I'm willing to stipulate that we did not comply with the stipulation. 00:13:23 THE COURT And Mike, let me ask you this: if he were to stipulate to what he's saying, and in addition, he'll agree to get some number of tests - would that satisfy you as far as at least just these papers are concerned? 00:13:38 MR. KOZEK Maybe. Okay. The language in terms of what the stipulation would say is important to me because of these other cases that are referred to, which are concerning to us, right? Like, when the stipulation was entered into, there were certain considerations negotiated, certain expectations about what that language means, about what's going to happen, et cetera. Right. There's non-compliance with that. And then the owner attempts to use a provision of the agreement that they didn't comply with to claim that, you know, my client has no claims in another, you know - 00:14:16 MR. KOZEK - another context, right? It's difficult, you know, for us. So if there is a way to craft language that deals with that issue in a way that's satisfactory, great. I'm - 00:14:29 MR. SKALLER Happy - I'm happy to review it. 00:14:30 THE COURT So I have an idea. Well, I'm gonna mark it reserved. I'm gonna hold it. I'm gonna put a note to myself to not look at it for two weeks. I will then reach out to you and see if a quick virtual conference will help tie up loose ends, or if we've completely fallen apart. Is that reasonable, gentlemen? And Miss - is not on this case. Is this reasonable? 00:14:50 MR. KOZEK That's fine for me. And I did, by the way, David - I didn't mean to sandbag you here today. That was certainly not my intention. So, um, I - 00:14:59 MR. SKALLER - am receptive to any wording, any stipulation that you have, where I could talk to my client. So I am happy to try to resolve it. 00:15:07 THE COURT All right, so I'm going to put it in a note on NYSCEF. If in the interim between now and the two-week period there is additional, uh, conversations you need to have that you want intervention on, please let me know. I can schedule a conference on an hour's notice under most circumstances. So, uh, if I don't hear from anyone, I will reach out - I'm going to ask [the clerk] myself to reach out, and this will all be reflected in the NYSCEF note. Okay? 00:15:27 MR. SKALLER Okay. And intervention is the proper word. 00:15:31 THE COURT Sure, we love that word. All right, thank you, everyone. So I'll put a note in now, and then I'll speak to Miss Odom on her case now. Thank you so much. All right, bye-bye. ---------------------------------------------------------------------- END - WT-106C Reference Transcript (Names Corrected) - uncertified; source of record is the FTR .wma