Milien v. City of New York - Department of Education

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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VLADYMIR MILIEN,

Plaintiff, MEMORANDUM & ORDER

20-CV-480 (MKB)

v.

CITY OF NEW YORK – DEPARTMENT OF

EDUCATION, and NYC SCHOOL SUPPORT

SERVICES, INC.,

Defendants.

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MARGO K. Brodie, United States District Judge:

Plaintiff Vladymir Milien commenced this lawsuit against Defendants City of New York

Department of Education (“DOE”) and NYC School Supports Services, Inc. (“NYCSSS”),

alleging race discrimination and retaliation claims in violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and the New York City Administrative Code,

N.Y.C. Admin. Code § 8-101 et seq. (“NYCHRL”); unpaid overtime premium wages and wage

supplement claims under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), and

the New York Labor Law § 190 et seq. (“NYLL”); and an interference claim pursuant to the

Family Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”), arising out of his employment

with Defendants working at Q129, a public school run by Defendants. (Compl., Docket Entry

No. 1.) Jury selection and trial is scheduled to begin December 2, 2024. (Order dated Feb. 20,

2024.)

Currently before the Court are Plaintiff’s and Defendants’ motions in limine.1 For the

reasons listed below, the Court grants Plaintiff’s motion in part and denies it in part, and grants

Defendants’ motion in part and denies it in part.

I. Plaintiff’s motion in limine

a. The Court grants Plaintiff’s motion to exclude certain of Defendants’ exhibits

as inadmissible hearsay evidence

Plaintiff argues that Defendants’ Exhibits L, M, N, O, P, Q, R, S, T, U, and Z should be

excluded because they are inadmissible hearsay evidence. (Pl.’s Mem. 2–13.)

Defendants argue primarily that the exhibits should all be admitted because they are not

being offered for truth of the matter asserted, but rather to indicate the state of mind of Michael

Lettieri, Plaintiff’s supervisor, at the time he issued “certain disciplinary action forms” against

Plaintiff. (Defs.’ Opp’n 1–6.)

Evidence is hearsay, and therefore inadmissible, if it is “a statement that: (1) the declarant

does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to

prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c), 802; see also

Ezrasons, Inc. v. Travelers Indemnity Co., 89 F.4th 388, 393 n.3 (2d Cir. 2023) (“Hearsay is

defined . . . as a declarant’s statement made otherwise than while testifying in the current trial or

hearing, which is offered by a party to prove the truth of what was asserted in the statement.”

(citing Fed. R. Evid. 801(c))). Out-of-court statements not offered for their truth may be

permissible if they satisfy Rules 401 and 403 of the Federal Rules of Evidence, and thus, in order

1 (Pl.’s Mot. in Limine (“Pl.’s Mot.”), Docket Entry No. 41; Pl.’s Mem. in Supp. of Pl.’s

Mot. (“Pl.’s Mem.”), Docket Entry No. 41-23; Defs.’ Opp’n to Pl.’s Mot. (“Defs.’ Opp’n”),

Docket Entry No. 51; Pl.’s Reply in Supp. of Pl.’s Mot. (“Pl.’s Reply”), Docket Entry No. 54;

Defs.’ Mot. in Limine (“Defs.’ Mot.”), Docket Entry No. 45; Defs.’ Mem. in Supp. of Defs.’ Mot.

(“Defs.’ Mem.”), Docket Entry No. 47; Pl.’s Opp’n to Defs.’ Mot. (“Pl.’s Opp’n”), Docket Entry

No. 49; Defs.’ Reply in Supp. of Defs.’ Mot. (“Defs.’ Reply”), Docket Entry No. 55.)

to be admissible: “(1) the non-hearsay purpose for which the evidence is offered must be relevant

and (2) the probative value of the evidence for this non-hearsay purpose must not be outweighed

by the danger of unfair prejudice.” United States v. Singh, 726 F. App’x 845, 848 (2d Cir. 2018)

(quoting United States v. Paulino, 445 F.3d 211, 217 (2d Cir. 2006)).

i. Defendants’ Exhibits L, N, O, P, Q, R, and S

Plaintiff seeks to exclude from evidence Defendants’ Exhibits L, N, O, P, Q, R, and S,

which consist of letters from Q129 employees recounting alleged disputes between Plaintiff and

Michael Lettieri, his supervisor, and other employees, as well as alleged behavior exhibited by

Plaintiff. (Pl.’s Mem. 2–10.) Plaintiff argues that the letters are hearsay pursuant to Rules 801(c)

and 802 of the Federal Rules of Evidence because they are (1) not a product of testimony at a

trial or hearing, (2) are being offered to prove the truth of the matter asserted, in particular that

these disputes and behavior occurred, and (3) are not subject to any hearsay exceptions. (Id.)

Defendants argue that the letters should be admitted because (1) Defendants intend to use

the letters to show Lettieri’s state of mind when issuing disciplinary action against Plaintiff,

(2) the internal complaints are relevant because they show Defendant’s legitimate business

interest in issuing certain disciplinary action against Plaintiff, and (3) precluding the evidence

would “improperly hinder [Defendants’] legitimate business reason defense.” (Defs.’ Opp’n 1–

2.)

The Court grants Plaintiff’s motion to exclude the letters. The contents of the letters

themselves are hearsay, and to the extent Defendants intend to call Lettieri as a witness during

trial, he will be permitted to testify about the reasons for his decisions to issue the relevant

disciplinary actions against Plaintiff. See, e.g., Greene v. Brentwood Union Free Sch. Dist., 966

F. Supp. 2d 131, 141 (E.D.N.Y. 2013) (“While[] the direct testimony of other employees about

their treatment by the defendants may be relevant to the issue of the employer’s intent, the

complaints, themselves, are . . . inadmissible hearsay.” (alteration in original) (citation omitted)),

aff’d 576 F. App’x 39 (2d Cir. 2014). The Court therefore grants Plaintiff’s motion to exclude

Defendants’ Exhibits L, N, O, P, Q, R, and S.2

ii. Defendants’ Exhibit M

Plaintiff argues that Exhibit M, a letter from Marilyn Alesi, Principal of Q129, informing

Lettieri that she had received complaints from teachers about alleged loud and aggressive

behavior by Plaintiff, is hearsay because it (1) was not the product of testimony at trial or a

hearing, (2) is being offered to prove the truth of the matter asserted, namely that Plaintiff was

“loud and aggressive,” and (3) is hearsay within hearsay because it speaks to complaints received

from other teachers, and states that other teachers “felt uncomfortable” with the way that Plaintiff

spoke to Lettieri. (Pl.’s Mem. 3–4.) Plaintiff also argues that Exhibit M has no relevance to the

parties’ claims or defenses because whether Plaintiff was “loud or aggressive has no probative

value into Plaintiff’s performance or whether actions taken against him by Defendants were

justified” and therefore it should be excluded pursuant to Rule 402 of the Federal Rules of

Evidence. (Id. at 4.) Plaintiff contends that even if the document had any probative value, it

would be outweighed by the danger of unfair prejudice to Plaintiff and should be excluded under

Rule 403. (Id.) Finally, Plaintiff argues that Exhibit M is impermissible character evidence

2 Plaintiff also seeks to exclude these exhibits for the following reasons: (1) Exhibits L,

Q, R, and S because they constitute hearsay within hearsay; (2) Exhibits N, O, and P because

they are impermissible character evidence; (3) Exhibits O, P, Q, R, and S because they are

irrelevant to the claims at issue; and (4) Exhibits O and P because any probative value would be

substantially outweighed by prejudice to Plaintiff. (Pl.’s Mem. 2–10.) Because the Court

excludes the Exhibits as hearsay, it declines to address these additional arguments.

under Rule 404(a)(1) because Defendants attempt to use it to show that because Plaintiff acted

loudly and aggressively in one instance, he did so in other instances related to his work. (Id.)

Defendants argue that the letter should be admitted because (1) Defendants intend to use

the letter to show Lettieri’s state of mind when issuing disciplinary action against Plaintiff,

(2) the internal complaint is relevant because it shows Defendants’ legitimate business interest in

issuing certain disciplinary action against Plaintiff, and (3) precluding the letter would

“improperly hinder [Defendants’] legitimate business reason defense.” (Defs.’ Opp’n 1–2.)

Rule 805 of the Federal Rules of Evidence states that hearsay within hearsay is

inadmissible, unless “each part of the combined statements conforms with an exception to the

hearsay rule.” See also United States v. Cummings, 858 F.3d 763, 773 (2d Cir. 2017) (“Under

Federal Rule of Evidence 805, ‘[h]earsay within hearsay is not excluded by the rule against

hearsay if each part of the combined statements conforms with an exception to the rule.’”); Platt

v. Michaan, 695 F. Supp. 3d 420, 440 (S.D.N.Y. 2023) (same).

The letter is inadmissible as hearsay within hearsay. The contents of Alesi’s letter

recounts statements made to her by other teachers. (See, e.g., Letter from Marilyn Alesi,

annexed to Clark Decl. as Ex. 4, Docket Entry No. 41-5 (“I received complaints from a few

teachers about loud and aggressive behavior from one of the custodial helpers. When I asked, it

seems to be [Plaintiff]. The teachers felt uncomfortable about the way he spoke to you during

the school day with teachers and children in the vicinity.”).) These statements are hearsay, and

therefore, regardless of whether the letter could be offered to show Lettieri’s state of mind, “each

part of the combined statement[]” does not “conform with an exception to the [hearsay] rule.”

Fed. R. Evid. 805. The Court therefore grants Plaintiff’s motion to exclude Defendants’ Exhibit

M. See, e.g., Platt, 695 F. Supp. 3d at 440 (concluding testimony was inadmissible hearsay

within hearsay because one part of the statement was inadmissible hearsay, and noting “[t]he

statement is only admissible if each part falls within an exception or exclusion to the hearsay

rule” (emphasis omitted)).

iii. Rules and regulations for Q129 custodial employees (Defendants’

Exhibit T)

Plaintiff argues that Exhibit T, a copy of a document containing the rules and regulations

for custodial employees at Q129 with two handwritten notations, should be excluded as

impermissible hearsay. (Pl.’s Mem. 10–11.) In particular, the document contains two

handwritten notations at the bottom of the document, one of which states “sign document with

your name and return” and signed “Mike,” and the second one which states “I will not sign this.

Have a good day.” (Rules and Regulations, annexed to Clark Decl. as Ex. 11, Docket Entry No.

41-12.) Plaintiff argues that the notations constitute hearsay because the notations are being

offered to prove the truth of the matter asserted, namely that Lettieri directed Plaintiff to sign the

rules and regulations and he refused. (Pl.’s Mem. 11.) Plaintiff argues that there is no indication

that the notation on the bottom right was made by Plaintiff, and that it does not satisfy any of the

hearsay exceptions of Rules 803 or 804. (Id.)

Defendants argue that Exhibit T should be admitted because (1) the rules and regulations

applicable to Q129 employees are highly relevant, and (2) the notations are not hearsay. (Defs.’

Opp’n 3.) Defendants argue that the notation they assert is signed by Lettieri is not hearsay

because it is not being offered for the truth of the matter asserted, i.e., that Plaintiff was asked to

sign the document and return it, but rather to give context regarding Plaintiff’s work performance

and insubordination. (Id.) Defendants also argue that, although “there is no indication that this

note was made by [P]laintiff, . . . [he] testified at his deposition about the fact that he refused to

sign off on rules and regulations presented to him by [D]efendants.” (Id.) Defendants therefore

argue that they should be able to cross examine him on the statement made during his deposition.

(Id.)

The Court grants in part Plaintiff’s motion to exclude the notations in Exhibit T. As to the

notation Defendants contend was made by Lettieri, offering it to “give context” regarding

Plaintiff’s alleged work performance and insubordination is the equivalent of offering it for the

truth of the matter asserted, namely, that Plaintiff refused to sign the rules and regulations and

was therefore insubordinate. The Court therefore grants Plaintiff’s motion to exclude this

notation on Exhibit T.

As to the notation Defendants assert was made by Plaintiff, if properly authenticated, it

would be admissible under Rule 801(d)(2)(A) of the Federal Rules of Evidence as a statement

offered against an opposing party and made by that party in his individual capacity. Rule

801(d)(2)(A) states that a statement is not hearsay where it is “offered against an opposing party

and . . . was made by the party in an individual or representative capacity.” See also Cummings,

858 F.3d at 773 (“[U]nder Rule 801(d), a statement is not hearsay if it is ‘offered against an

opposing party and . . . was made by the party in an individual . . . capacity.” (quoting Fed. R.

Evid. 801(d)(2)(A))); United States v. Watts, 934 F. Supp. 2d 451, 466 (E.D.N.Y. 2013) (same).

The only indication Defendants offer, however, to support a conclusion that the notation

was made by Plaintiff is the assertion that Plaintiff testified at his deposition to “the fact that he

refused to sign off on rules and regulations presented to him by [D]efendants.” (Defs.’ Opp’n 3.)

Although “[t]he bar for authentication of evidence is not particularly high,” United States v. Al-

Moayad, 545 F.3d 139, 172 (2d Cir. 2008) (alteration in original) (quoting United States v.

Gagliardi, 506 F.3d 140, 151 (2d Cir. 2008)), even assuming Plaintiff testified generally that he

did not sign the rules and regulations, this is insufficient to support a conclusion that he made the

specific notation on the rules and regulations document being offered. The Court therefore

reserves judgment as to whether the second notation is admissible, pending Defendants’ ability to

meet their burden under Rule 901 of the Federal Rules of Evidence and properly authenticate the

notation. In the event Defendants are unable to authenticate the notation as having been written

by Plaintiff, the second notation will also be excluded. See Fed. R. Evid. 901(a) (“To satisfy the

requirement of authenticating or identifying an item of evidence, the proponent must produce

evidence sufficient to support a finding that the item is what the proponent claims it is.”); see

also, e.g., United States v. Bourne, No. 08-CR-888, 2011 WL 4458846, at *17 (E.D.N.Y. Sept.

23, 2011) (concluding letters written by the defendants were admissible against the defendants

assuming the government could “meet[] its burden under Federal Rule of Evidence 901 and

properly authenticate the letters at trial”).

iv. Flush valve training document (Defendants’ Exhibit U)

Plaintiff argues that Exhibit U, a document sent to Plaintiff from Lettieri consisting of a

work assignment and handwritten signatures indicating other individuals witnessed a training

and that the trainee refused to sign the form, is impermissible hearsay because Defendants are

offering it to prove the truth of the matter asserted — namely, that Plaintiff received training to

repair a leaking flush valve and refused to sign the document. (Pl.’s Mem. 12.) Plaintiff argues

that there is no evidence that the document satisfies any hearsay exception, and that it is unclear

how the document, if not offered for the truth of the matter asserted in the document, would be

used to show Lettieri’s state of mind when issuing disciplinary action to Plaintiff. (Id.; Pl.’s

Reply 5.)

Defendants argue that Exhibit U goes to Defendants’ legitimate business reason defense

(but do not argue that it is a business record), because it shows that Plaintiff was provided

training on how to complete the work assignment at issue prior to receiving discipline for not

completing it. (Defs.’ Opp’n 4.) Defendants also argue that the document is not being offered

for the truth of the matter asserted, but rather to “show the effect on the listener,” here Lettieri.

(Id. at 5.)

The Court grants Plaintiff’s motion to exclude the document. There is nothing about the

document that indicates that it would have had any bearing on Lettieri’s decisions to issue

disciplinary action against Plaintiff, outside of the truth of the content of the document itself.

(Defendants’ Ex. U, annexed to Clark Decl. as Ex. 13, Docket Entry No. 41-14.) Defendants

assert they would use the document to show “Plaintiff[’s] failure to complete a job assigned to

him after training,” which indicates that their purpose for offering the document is for the truth of

the matter asserted in the document itself. (Defs.’ Opp’n 5.)

The Court therefore grants Plaintiff’s motion to exclude Exhibit U.

v. The Wilson letter (Defendants’ Exhibit Z)

Plaintiff argues that Exhibit Z, a letter from William Wilson, an employee at NYCSSS,

sent to Plaintiff’s union regarding future communications between Plaintiff and NYCSSS staff,

should be excluded as impermissible hearsay. (Pl.’s Mem. 13.) Plaintiff argues that the letter is

hearsay because the document is being offered to prove the truth of the matter asserted, namely,

that Plaintiff was directed to (1) bring any non-payroll issues to the union’s attention, (2) email

payroll issues to NYCSSS, and (3) communicate professionally with his custodian engineer.

(Id.) Plaintiff also argues that the evidence should be excluded as irrelevant because “whether or

not Plaintiff was directed to [take any of these actions] does not tend to prove or disprove

whether the assignment of overtime was discriminatory or retaliatory, whether the [disciplinary

actions] issued to Plaintiff were discriminatory or retaliatory, whether Plaintiff’s suspension in

May 2019 was discriminatory or retaliatory, or whether Defendants were a joint employer.” (Id.)

Defendants argue that the letter should be admitted because it “is relevant to show why

disciplinary actions taken after the letter was issued were necessary and appropriate.” (Defs.’

Opp’n 6.) Defendants also argue that the letter is not hearsay because it is being offered to

establish its effect on Lettieri’s state of mind and motivation for issuing disciplinary action. (Id.)

Defendants contend that to exclude evidence concerning Mr. Lettieri’s motivation for issuing

disciplinary actions “would deny them a full and fair opportunity to defend themselves,” and

would deprive the jury of context regarding Plaintiff’s actions after receiving this letter. (Id.)

The Court grants Plaintiff’s motion to exclude the document. There is nothing about the

document that indicates that it would have had any bearing on Lettieri’s decisions to issue

disciplinary action against Plaintiff, outside of the truth of the content of the document itself.

(Defendants’ Ex. U, annexed to Clark Decl. as Ex. 13, Docket Entry No. 41-14.)

The Court therefore grants Plaintiff’s motion to exclude Exhibit Z.

b. Stipulations of settlement (Defendants’ Exhibits AA and GG)

Plaintiff argues that Exhibits AA and GG, stipulations of settlement entered into between

Plaintiff and NYCSSS relating to separate grievances, should be excluded pursuant to Rule 408

of the Federal Rules of Evidence. (Pl.’s Mem. 14.) Plaintiff argues that they should be excluded

because the acceptance of consideration in exchange for settling a claim is not admissible to

prove the validity or amount of a disputed claim, or for impeachment purposes. (Id.) Plaintiff

also argues that the documents should be excluded as irrelevant, because neither of the

stipulations tend to prove or disprove any of the claims or defenses of the parties and they carry

the dangers of unfair prejudice to Plaintiff, confusion of issues, and misleading the jury. (Id. at

14–15.) Plaintiff also argues that to the extent Defendants argue the effect of the prior

stipulations of settlement at trial, the Court already addressed these effects in its summary

judgment order (“September 2023 Decision”), (Mem. & Order dated Sept. 15, 2023 (“Sept. 2023

Decision”), Docket Entry No. 39), and therefore it would be improper to revisit the issue on a

motion in limine. (Pl.’s Reply 7.)

Defendants withdraw Exhibits AA and GG from their exhibit list, but argue that Plaintiff

should be barred from recovering damages on any claim that was the subject of these prior

settlement agreements. (Defs.’ Opp’n 7.) In particular, Defendants argue that Plaintiff “must be

barred from arguing that he is entitled to damages for claims barred by these agreements, and

should be precluded from offering any evidence regarding those claims against NYCSSS at

trial.” (Id.)

In the September 2023 Decision, the Court concluded that all claims against NYCSSS

that accrued prior to October 29, 2018 — the date of the first stipulation of settlement — were

barred, excluding Plaintiff’s FLSA claims. (Sept. 2023 Decision 25–26.) The Court also

concluded that Plaintiff’s claims against NYCSSS based on his May 6, 2019 suspension were

barred in full, but Plaintiff’s claims against DOE stemming from that suspension were not. (Id.

at 26–27.) The Court also dismissed Plaintiff’s FLSA claims for separate reasons. (Id. at 49–

51.) Because Defendants do not object to the exclusion of Exhibits AA and GG, and the parties

do not appear to disagree regarding which claims are outstanding pursuant to the September

2023 Decision, the Court excludes Exhibits AA and GG. Plaintiffs may submit evidence as to

damages related only to the outstanding claims as specified in the September 2023 Decision.

c. Text message (Defendants’ Exhibit BB)

Plaintiff argues that Exhibit BB, which consists of a text message in which Plaintiff states

he knows powerful people and that he “[doesn’t] start trouble [he] just like[s] to finish it,” should

be excluded as irrelevant. (Pl.’s Mem. 15.) Plaintiff argues that the statements in the text

message have no probative value because they do not tend to prove or disprove any of the claims

of the parties, and that at most it shows that he engaged in a protected activity with the National

Labor Relations Board (“NLRB”). (Id.) Plaintiff also argues that the text message should be

excluded pursuant to Rule 403 because Defendants offer the text message “in order to portray

Plaintiff as threatening or menacing,” and its potential for prejudice therefore substantially

outweighs its probative value. (Id. at 16.) Further, Plaintiff argues that Defendants have not

properly authenticated the text message sufficiently to show that Plaintiff authored the message.

(Pl.’s Reply 7–8.)

Defendants argue that the text message should be admissible because it is “clearly

relevant to the issue of whether [P]laintiff was [a] bad employee in that he lacked

professionalism and was insubordinate,” and it is not more prejudicial than it is probative.

(Defs.’ Opp’n 7–8.)

The Court grants Plaintiff’s motion to exclude the text message. The text message has

minimal probative value, as it appears to demonstrate Plaintiff informing his supervisor that he

had filed a complaint, which does not indicate insubordination. (Defendants’ Ex. BB, annexed to

Clark Decl. as Ex. 17, Docket Entry No. 41-18.) Plaintiff has also indicated that the complaint at

issue in the text message is not protected activity that forms the basis for any of his claims,

which further lessens its probative value. (Pl.’s Mem. 16.) This minimally probative evidence is

outweighed by the potential for prejudice, namely jurors viewing the text message as an

indication that Plaintiff was “threatening or menacing.” (Id. at 15.)

The Court therefore grants Plaintiff’s motion to exclude Defendants’ Exhibit BB from

evidence.

d. Handwriting on photographs (Defendants’ Exhibit CC)

Plaintiff argues that the handwritten portions of Exhibit CC, which consists of

photographs with handwritten notes on them, should be excluded as impermissible hearsay.

(Pl.’s Mot. 16.) Defendants do not object to the redaction of the handwritten notes in Exhibit

CC. (Defs.’ Opp’ n 8.) The Court therefore grants Plaintiff’s motion to exclude the handwritten

portions of Exhibit CC.

e. Prior transcripts of Plaintiff’s testimony (Defendants’ Exhibits DD–EE)

Plaintiff argues that Defendants should be precluded from admitting the entirety of prior

transcripts of his deposition and 50-H hearing transcripts, because to admit the entire transcripts

“would result in the needlessly cumulative presentation of evidence and would waste the jury’s

time.” (Pl.’s Mem. 17.) Plaintiff also argues that should Defendants seek to introduce portions

of the exhibits for any purpose other than impeachment, Plaintiff will object because Defendants

have not identified the portions of the transcripts they may use. (Pl.’s Reply 9.)

Defendants state that they intend to use Exhibits DD–EE only for purposes of

impeachment, “unless a specific issue arises that might make it necessary for [D]efendants to use

portions of” the exhibits. (Defs.’ Opp’n 8.) In the event Defendants seek to introduce portions

of the exhibits for purposes other than impeachment, Defendants assert that they will seek prior

leave from the Court to do so. (Id.)

The parties appear to agree that Defendants may use the transcripts for purposes of

impeachment. The Court therefore grants Plaintiff’s motion to the extent it seeks to preclude

Defendants from introducing the entirety of each transcript as direct evidence, and will consider

any requests made by Defendants, and objections made by Plaintiff, should Defendants seek to

introduce portions of the transcripts in their case in chief.

f. Testimony regarding Plaintiff’s alleged discriminatory statements

Plaintiff argues that Defendants should be precluded from eliciting testimony concerning

alleged discriminatory statements made by Plaintiff. (Pl.’s Mem. 17.) Plaintiff argues that any

testimony from a witness at trial concerning alleged discriminatory statements made by Plaintiff

“would be irrelevant and would serve the sole purpose of unduly prejudicing Plaintiff by

inflaming the jury.” (Id.) Plaintiff contends that even were Plaintiff to open the door to the

statements, the Court should preclude Defendants from eliciting any testimony from any

witnesses as to this statement. (Id.)

Defendants argue that they will not introduce evidence of alleged discriminatory

statements made by Plaintiff unless he “opens the door on his direct examination.” (Defs.’

Opp’n 8–9.) Should he do so, Defendants contend that they will seek prior leave of the Court to

examine Plaintiff about these statements. (Id. at 9.)

Because Defendants do not object to the preclusion of eliciting testimony as to this

statement in its case in chief, the Court precludes them from doing so. The Court reserves

judgment as to whether Defendants will be permitted to elicit evidence of the statements should

Plaintiff open the door during his direct examination.

II. Defendants’ motion in limine

a. Previously dismissed claims

Defendants argue that Plaintiff should be precluded from introducing “any evidence

regarding any claims, or damages attendant to claims,” previously dismissed. (Defs.’ Mot. 3.) In

support, Defendants note that the Court dismissed Plaintiff’s FLSA, NYLL, and FMLA claims in

the September 2023 Decision and therefore argue that any evidence as to those claims should be

precluded as irrelevant and likely to confuse the jury, pursuant to Rules 402 and 403. (Id.)

Plaintiff argues that the Court should deny Defendants’ motion because they “have not

identified specific evidence or anticipated testimony that may be of concern.” (Pl.’s Opp’n 1.)

Plaintiff also argues that regardless, it does not intend to offer evidence relating to dismissed

claims unless the evidence is also relevant to a claim surviving summary judgment or provides

general background or context needed under the circumstances. (Id. at 1–2.)

Neither Defendants nor Plaintiff offer specific examples of the type of evidence they

anticipate Plaintiff may seek to introduce at trial related to the dismissed claims. To the extent

Plaintiff seeks to introduce evidence that is irrelevant to its remaining claims, it would be

precluded pursuant to Rule 402. To the extent Plaintiff seeks to introduce evidence relevant to

the outstanding claims, however, it may be admissible, regardless of whether it overlaps with

evidence that would also be supportive of any of the dismissed claims.

b. Audio recordings (Plaintiff’s Exhibits 36–41)

Defendants argue that Exhibits 36, 37, 38, 39, 40, and 41, audio recordings of Plaintiff

with “unidentified individuals,” should be excluded as inadmissible hearsay because they are

out-of-court statements offered for the truth of the matter asserted, and do not fall within any of

the admissible hearsay exceptions. (Defs.’ Mem. 4–5.)

Plaintiff argues that it is premature to exclude the audio recordings because Plaintiff has

not yet been given the opportunity to authenticate the audio statements. (Pl.’s Opp’n 2.) Without

providing what hearsay exceptions Plaintiff believes the recordings may be admissible under,

Plaintiff argues that it is premature to determine whether “there are circumstances in which the[]

audio recordings are admissible,” including possible hearsay exceptions and to impeach an

inconsistent witness. (Id.)

The parties do not dispute that the audio recordings are out-of-court statements that

would be offered for the truth of the matter asserted within the recording. Without additional

information regarding the recordings, however, the Court is unable to determine whether any

applicable hearsay exceptions apply that would make the audio recordings admissible, and if

they do, whether Plaintiff is likely to be able to properly authenticate them under Rule 901. The

Court therefore reserves judgment as to the admissibility of Exhibits 36–41. See, e.g., United

States v. Pugh, 162 F. Supp. 3d 97, 101 (E.D.N.Y. 2016) (“A court considering a motion in limine

may reserve judgment until trial in order to place the motion in the appropriate factual context.”).

c. Character evidence pertaining to non-party witnesses

Defendants argue that Plaintiff should be precluded from “eliciting any testimony or

presenting any evidence regarding non-party witness’ character such as disciplinary histories,

prior complaints, employment discrimination actions, or lawsuits which have been filed against

the non-party witnesses,” pursuant to Rule 404(b). (Defs.’ Mot. 5.)

Plaintiff states that he does not intend to offer any impermissible character evidence

concerning any non-party witness. (Pl.’s Opp’n 3.) Nevertheless, Plaintiff argues that the Court

should deny Defendants’ request because it is overly broad and vague, and therefore “it is

impossible to identify the witnesses, topics, or specific evidence” that are of concern to

Defendants. (Id.)

Plaintiff does not object to Defendants’ request that he not offer any impermissible

character evidence regarding non-party witnesses. Without additional information regarding the

evidence Defendants are trying to exclude, however, the Court is unable to determine whether

the evidence is impermissible under Rule 404(b). To the extent Plaintiff seeks to introduce

character evidence regarding a non-party witness at trial, the Court reserves judgment as to the

admissibility of that evidence. See Pugh, 162 F. Supp. 3d at 101.

d. Requesting a specific dollar amount from the jury

Defendants argue that Plaintiff should be precluded from suggesting a specific dollar

amount to the jury during his opening statement, during the testimony of any witness, and/or

during summation. (Defs.’ Mem. 7–8.) Defendants note that the Second Circuit has not adopted

a rule prohibiting suggesting a specific dollar amount to the jury, but argue that Consorti v.

Armstrong World Industries, Inc., 72 F.3d 1003, 1026 (2d Cir. 1995), vacated on other grounds

sub nom. Consorti v. Owens-Corning Fiberglass Corp., 518 U.S. 1031 (1996), disfavors

specifying target amounts for the jury to award.

Plaintiff argues that he should only be precluded from requesting a specific dollar amount

from the jury for pain and suffering damages. (Pl.’s Opp’n 3–4.) Plaintiff contends that although

specifying target amounts for the jury to award for pain and suffering is disfavored, courts in this

district have allowed plaintiffs to submit evidence to the jury regarding other compensable

damages and allowed plaintiffs to present evidence and submit a target amount during closing

arguments. (Id. at 4.)

The Second Circuit has “emphasize[d] that specifying target amounts for the jury to

award is disfavored,” Consorti, 72 F.3d at 1016, although it is within the discretion of the Court

to determine whether to “prohibit counsel from mentioning specific figures or impose reasonable

limitations, including cautionary jury instructions,” Lightfoot v. Union Carbide Corp., 110 F.3d

898, 912 (2d Cir. 1997). See also Lupia v. N.J. Transit Rail Operations, Inc., 110 F.4th 450, 455

n.19 (2d Cir. 2024) (noting the “more flexible approach” under which the issue is left “to the

discretion of the trial judge” (quoting Lightfoot, 110 F.3d at 912, abrogated on other grounds by

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002))); see also Lightfoot, 110 F.3d at 912

(declining to adopt a per se rule prohibiting counsel from suggesting a specific sum as damages,

and instead adopting “a more flexible approach” under which the determination “is best left to

the discretion of the trial judge, who may either prohibit counsel from mentioning specific

figures or impose reasonable limitations, including cautionary jury instructions”); Reynolds v.

Am. Airlines, Inc., No. 14-CV-2429, 2017 WL 5613115, at *10 (E.D.N.Y. Nov. 21, 2017) (same);

Jean-Laurent v. Hennessy, 840 F. Supp. 2d 529, 558 (E.D.N.Y. 2011) (permitting the plaintiff to

present to the jury specific damages amounts for all compensable damages except pain and

suffering); Edwards v. City of New York, No. 08-CV-2199, 2011 WL 2748665, at *2 (E.D.N.Y.

July 13, 2011) (“Plaintiff’s counsel will be permitted to suggest a specific dollar amount in his

closing statement, but must do so in the first argument in order for defense counsel to respond if

he chooses to do so, before plaintiff’s counsel makes his final argument.”).

Because the parties agree that a specific dollar amount related to pain and suffering

damages should not be presented to the jury, the Court grants Defendants’ motion as to that issue,

and precludes Plaintiff from presenting a specific dollar amount for pain and suffering damages

to the jury. As to other compensable damages, the Court reserves decision until trial.

e. Front pay and back pay damages

Defendants argue that pursuant to Rule 39(a)(2) of the Federal Rules of Civil Procedure,

there is no federal right to a jury trial as to the issue of back pay and front pay damages, and

objects to any determination of those damages being made by the jury and not the Court. (Defs.’

Mem. 8.) Defendants contend that the Court should determine the appropriateness of an award

of back pay, front pay, or other equitable relief, and also request that Plaintiff be precluded from

presenting any evidence or argument regarding back pay and other equitable damages at trial.

(Id.)

Plaintiff argues that the issue of back pay should be decided by the jury. (Pl.’s Opp’n 4.)

In support, Plaintiff argues that it “is well-established that back pay under the NYCHRL is a

legal remedy to which [Plaintiff] is entitled to a jury verdict.” (Id.) Plaintiff makes no argument

that front pay damages should be determined by the jury. (Id.)

“Because a lost wages award — whether in the form of back pay or front pay — is an

equitable remedy, a party is generally not entitled to a jury determination on the question.”

Broadnax v. City of New Haven, 415 F.3d 265, 271 (2d Cir. 2005) (emphasis omitted). Under the

NYCHRL, however, both back pay and front pay are legal remedies, to which plaintiffs are

entitled to a jury verdict. See, e.g., Colon v. City of New York, No. 16-CV-4540, 2023 WL

6497650, at *8 (S.D.N.Y. Oct. 5, 2023) (denying the defendant’s request to preclude the plaintiff

from testifying about what she would have earned but for the alleged adverse employment action

because “for claims brought under NYSHRL and NYCHRL, both back pay and front pay are

legal remedies to be determined by the jury” (citation omitted)); Dodd v. City University of N.Y.,

541 F. Supp. 3d 318, 321 (S.D.N.Y. 2021) (citing Tyler v. Bethlehem Steel Corp., 958 F.2d 1176,

1189 (2d Cir. 1992)). The Court therefore denies Defendants’ motion to preclude a

determination of back pay and front pay by the jury, and will permit Plaintiff to provide evidence

regarding its claims for back pay and front pay under the NYCHRL.

f. Plaintiff’s November 17, 2022 Equal Employment Opportunity Commission

complaint

Defendants argue that evidence related to any employment events occurring between

January of 2022 and October 20, 2022 should be precluded. (Defs.’ Mem. 12.) In particular,

Defendants point to a complaint filed with the U.S. Equal Employment Opportunity Commission

(“EEOC”), complaining about employment events during that time frame. (Id.) Defendants

argue that the claims in the EEOC complaint “are not a part of this matter” and are therefore

irrelevant to the claims at issue. (Id.) Defendants also argue that even if relevant, any evidence

related to events that took place during that time frame would be substantially more prejudicial

than probative. (Id. at 12–13.)

Plaintiff responds that he does not intend to offer evidence relating to any events

subsequent to January 24, 2020. (Pl.’s Opp’n 6.)

Because Plaintiff does not object to Defendants’ request, the Court grants Defendants’

motion and precludes either party from offering any evidence related to events subsequent to

January 24, 2020.

III. Exclusion of witnesses

a. Witnesses not previously disclosed

Both Plaintiff and Defendants intend to call witnesses who were not included on their

Rule 26 disclosures. Each argue that the opposing party should be precluded from calling the

undisclosed individuals as witnesses at trial. (Pl.’s Mem. 18–19; Defs.’ Mem. 9–10.)

Under Rule 37 of the Federal Rules of Civil Procedure, if a party fails to provide

information or identify witnesses as required by Rule 26(a) or (e), the party may not use that

information or witness to “supply evidence on a motion, at a hearing, or at trial, unless the failure

was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1); see also Chamberlain Estate

of Chamberlain v. City of White Plains, 960 F.3d 100, 117 (2d Cir. 2020) (same). Despite the

apparently automatic nature of the Rule, district courts have discretion to impose sanctions other

than preclusion. See Fed. R. Civ. P. 37; S. New England Tel. Co. v. Global NAPs Inc., 624 F.3d

123, 144 (2d Cir. 2010) (“The district court is free to consider the full record in the case in order

to select the appropriate sanction.” (internal quotation marks and citation omitted)); Thompson v.

Jamaica Hosp. Med. Ctr., No. 13-CV-1896, 2015 WL 3824254, at *2 (S.D.N.Y. June 19, 2015)

(“Rule 37 requires that any action be ‘just,’ in order to ensure that the ‘severity of sanction [ ] be

commensurate with the noncompliance.’” (alteration in original) (quoting Shcherbakovskiy v. Da

Capo Al Fine, Ltd., 490 F.3d 130, 140 (2d Cir. 2007))); Atkins v. County of Orange, 372 F. Supp.

2d 377, 395–96 (S.D.N.Y. 2005) (noting that the imposition of sanctions pursuant to Rule 37 is

within the trial court’s discretion and preclusion is not generally ordered), aff’d on other grounds

sub nom. Bellotto v. County of Orange, 248 F. App’x 232 (2d Cir. 2007). Failure to timely

produce documents during the discovery period is a violation of discovery rules, subject to

sanctions pursuant to Rule 37. See Kam Hing Enters., Inc. v. Wal-Mart Stores, Inc., 359 F. App’x

235, 237–38 (2d Cir. 2010). “The purpose of the rule is to prevent the practice of sandbagging

an opposing party with new evidence.” Haas v. Del. & Hudson Ry. Co., 282 F. App’x 84, 86 (2d

Cir. 2008) (internal quotation marks omitted). However, preclusion is an “extreme sanction”

and, before ordering preclusion, a court must consider less extreme responses, especially if the

“failure to comply is due to a mere oversight of counsel amounting to no more than simple

negligence.” Webb v. Buchanan Marine, Inc., No. 99-CV-3573, 2000 WL 347159, at *2

(S.D.N.Y. Mar. 31, 2000) (quoting Outley v. City of New York, 837 F.2d 587, 591 (2d Cir. 1988));

see also Clones Inv., LLC v. People’s Ins. Co. of China Property & Cas. Co., 792 F. App’x 126,

128 (2d Cir. 2020) (“[P]reclusion of evidence is a ‘harsh remed[y] and should be imposed only in

rare situations[.]’” (second alteration in original) (quoting Update Art, Inc. v. Modiin Publ’g,

Ltd., 843 F.2d 67, 71 (2d Cir. 1988))); Lujan v. Cabana Mgmt., Inc., 284 F.R.D. 50, 68 (E.D.N.Y.

2012) (same).

The Second Circuit has identified four factors to be considered on a motion to preclude

evidence pursuant to Rule 37: (1) the party’s explanation for its failure to comply, (2) the

importance of the testimony of the precluded witnesses or of the evidence, (3) any prejudice

suffered by the opposing party as a result of having to prepare to meet the new testimony or

evidence, and (4) the possibility of a continuance. Design Strategy, Inc. v. Davis, 469 F.3d 284,

296 (2d Cir. 2006) (quoting Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006)); see also

Chamberlain, 960 F.3d at 117; Kam Hing Enters., 359 F. App’x at 237. Bad faith is not required

to merit preclusion under the rule, but can be taken into account as an explanation for a party’s

failure to comply with discovery orders. Design Strategy, 469 F.3d at 296.

i. Testimony from Tara Murphy and Christine McHugh

Plaintiff argues that Tara Murphy and Christine McHugh, teachers at Q129, should not be

allowed to testify at trial because they lack the personal knowledge necessary to testify

concerning the subject matter of this action. (Pl.’s Mem. 18–19.) In support, Plaintiff argues that

(1) because they are non-custodial employees, they lack knowledge concerning whether a

custodial employee did or did not perform his duties, and (2) they lack knowledge of the identity

or description of the person who engaged in the workplace dispute with Lettieri, about which

they sent letters to Marilyn Alesi (the Principal of Q129). (Id. at 19.) Plaintiff also argues that

Murphy and McHugh should be precluded from testifying at trial because Defendants failed to

disclose them as potential witnesses during discovery, in either their Rule 26 initial disclosures or

their responses and objections to interrogatories. (Id.) Plaintiff contends that this failure to

disclose the witnesses was not harmless, because Defendants previously only disclosed the

letters, which did not name Plaintiff as the individual with which Lettieri had a dispute, and

therefore “only disclosed that [McHugh] and [Murphy] did not have relevant knowledge.” (Id.)

Defendants argue that Murphy and McHugh should be permitted to testify at trial because

(1) they have relevant information and personal knowledge of an issue in this matter because

they observed incidents in which Plaintiff was insubordinate, and therefore their testimony is

relevant to the issue of whether certain discipline that Plaintiff received was due to his work

performance rather than discrimination, (2) any failure to disclose the witnesses in their Rule 26

disclosure was inadvertent and harmless, because Plaintiff was aware of the witnesses during the

discovery process, when Defendants produced letters written by each of them, and Plaintiff

inquired about them during Lettieri’s deposition. (Defs.’ Opp’n 9–10.) Defendants also argue

that in the event Plaintiff wanted to, and the Court permitted it, there is sufficient time before

trial for Plaintiff to depose the witnesses without the need to adjourn trial. (Id. at 11.)

Defendants will be permitted to call Murphy and/or McHugh to testify at trial. First, the

proposed testimony from Murphy and McHugh is relevant to the claims at issue. It involves

their testimony that they observed incidents between Plaintiff and Lettieri during which Plaintiff

“was insubordinate and refused to do work assigned to him,” which supports Defendants’

assertion that Plaintiff was disciplined for legitimate business reasons.3 (Defs.’ Opp’n 9.)

Second, the four factors considered for a Rule 37 motion support permitting Murphy and

McHugh to testify. The first factor — the party’s explanation for its failure to comply — weighs

against excluding the witnesses’ testimony. Defendants assert that their failure to identify the

witnesses was inadvertent, which is supported by the fact that Defendants produced the letters

written by Murphy and McHugh during discovery. (Defs.’ Opp’n 10.)

3 Plaintiff points to the fact that Murphy and McHugh’s letters do not identify him as the

custodial worker involved in the altercation with Lettieri and argues that this shows that they lack

the personal knowledge necessary to identify him. (Pl.’s Reply 10.) Simply because the letters

did not identify him by name, however, does not mean that the witnesses would be unable to

identify Plaintiff through their testimony.

The second factor — the importance of the testimony of the witnesses — weighs slightly

in favor of preclusion. Although Defendants assert that the testimony is important to its case,

and the testimony relates to the question of whether Plaintiff was subject to disciplinary action

for a legitimate business reason, there is other available evidence by which Defendants can show

that Lettieri was relying on complaints from other employees in making his disciplinary

determinations and that he had an altercation with Plaintiff, including Lettieri’s testimony. See,

e.g., IBM Corp. v. Micro Focus (US) Inc., No. 22-CV-9910, 2024 WL 2240281, at *4 (S.D.N.Y.

May 17, 2024) (concluding factor two weighed against preclusion because the disputed evidence

related to the scope of damages at issue in the case), report & recommendation adopted, 2024

WL 3346078 (S.D.N.Y. July 8, 2024); Rienzi & Sons, Inc. v. I Buonatavola Sini S.R.L., No. 20-

CV-5704, 2024 WL 3965989, at *6 (E.D.N.Y. Aug. 27, 2024) (concluding the failure to disclose

was harmless where, in part, the evidence was “duplicative of other evidence in the record”).

The third factor — whether there was any prejudice to the opposing party, weighs in

favor of allowing the testimony, given that Defendants provided each of the witnesses’ letters in

discovery and that Plaintiff inquired about the individuals during Lettieri’s deposition. (Defs.’

Opp’n 10); see also Preuss v. Kolmar Lab’ys, Inc., 970 F. Supp. 2d 171, 177 (S.D.N.Y. 2013)

(concluding the defendant’s failure to disclose potential witnesses did not warrant preclusion

where, in part, “all three affiants’ names were brought up several times in depositions” and the

plaintiffs “were well aware of their identities and the scope of their knowledge”).

Finally, the fourth factor — whether a continuance is possible — is neutral and does not

weigh in favor of either party. Trial is scheduled for December of 2024, and therefore there is

sufficient time remaining before trial for Plaintiff to seek additional discovery as to these

witnesses if necessary. Cf. Design Strategy, 469 F.3d at 297 (noting this factor weighed in favor

of preclusion in part because at the time the testimony was offered “there was only a short time

left before trial” (internal quotation marks omitted)). However, discovery closed in April of

2021, and has therefore been closed for more than three years. (See Min. Entry dated Mar. 30,

2021); cf. Design Strategy, 469 F.3d at 297 (noting that weighing possibility of continuance

factor in favor of preclusion “was the fact that discovery had been closed for ‘approximately one

and a half years,’ and at the time of the offer of expert testimony there was only a ‘short time left

before trial’”); Clones Inv., 2019 WL 10817175, at *3 (concluding this factor was “neutral and

[did] not weigh in favor of either party” because “discovery closed over a year ago” but a

continuance was possible).

Because the majority of non-neutral factors weigh against preclusion, the Court denies

Plaintiff’s motion to preclude Murphy and McHugh from testifying.

ii. Testimony from Carlos Garcia, Judi Beckford, Jean Luie, and Jose

Perez

Defendants allege that Plaintiff also failed to disclose anticipated witnesses Carlos

Garcia, Judi Beckford, Jean Luie, and Jose Perez in his Rule 26 disclosures, and should therefore

be precluded from calling these witnesses at trial. (Defs.’ Mem. 9–10.) Defendants argue that

Plaintiff has no adequate explanation for failing to disclose the witnesses, and the prejudice of

having to prepare for the testimony of the unexpected witnesses is substantial, given the close of

discovery and the substantial time that has elapsed since the filing of the matter, making

evidence gathering more difficult. (Id. at 10.) Defendants also argue that the instances of

Plaintiff raising Perez and Garcia during discovery were not sufficient to put Defendants on

notice. (Defs.’ Reply 6.)

Plaintiff argues that Perez and Garcia should not be excluded from testifying because

both parties were made known to Defendants during the discovery process, as (1) Perez was

raised during Plaintiff’s deposition and Plaintiff produced an authorization to Defendants for

Perez’ employer, and (2) Defendants were aware that Garcia was Plaintiff’s union representative

and that Plaintiff reported and grieved his suspension and disciplinary action to Garcia. (Pl.’s

Opp’n 4–5.) Plaintiff also argues that even if he had a duty to supplement his Rule 26

disclosures, the violation as to Perez and Garcia was harmless. (Id. at 5.)

Plaintiff does not respond to Defendants’ arguments regarding Judi Beckford and Jean

Luie. (Id.) Because Plaintiff does not appear to argue against the preclusion of Judi Beckford

and Jean Luie as witnesses, the Court grants Defendant’s motion to preclude them from

testifying.

The Court reserves judgment as to whether the testimony from Perez and Garcia will be

permissible. The Court does not have sufficient information before it to determine whether the

four factors weigh in favor of precluding or permitting the testimony. Plaintiff does not indicate

the reason for his failure to disclose the witnesses in his Rule 26 disclosures, nor does he provide

any information as to how important the testimony from these witnesses is to his case. Plaintiff

provides no information about what he anticipates they will testify about, and the Court therefore

cannot determine that the testimony would even be probative, let alone integral enough to

Plaintiff’s case in chief to warrant permitting the testimony despite his failure to disclose the

witnesses during discovery.

The Court therefore reserves judgment as to whether Perez and Garcia will be permitted

to be called at trial, and directs Plaintiff to provide additional information within two weeks of

the filing of this Memorandum and Order regarding Plaintiff’s failure to disclose each witness.

b. Medical expert

Defendants also argue that to the extent Plaintiff is permitted to call Jose Perez as a

witness at trial, Plaintiff be precluded from calling him as an expert witness.4 (Defs.’ Mem. 10–

11.) Defendants argue that Plaintiff has failed to provide the mandatory expert disclosures

required by Rule 26, and that any prospective testimony from Plaintiff’s treating physicians or

therapists should be confined to their treatment of Plaintiff. (Id. at 11.)

Plaintiff argues that he does not intend to elicit expert testimony from Jose Perez, but

rather intends to limit his testimony to non-expert witness opinions related to his treatment of

Plaintiff. (Pl.’s Opp’n 5–6.)

A treating physician may provide testimony “limited to facts acquired and opinions

formed during consultation” without complying with the expert testimony disclosures required

by Rule 26(a)(2)(B). Rodriguez v. Village of Port Chester, 535 F. Supp. 3d 202, 214 (S.D.N.Y.

2021) (quoting Ali v. Connick, No. 11-CV-5297, 2016 WL 3002403, at *9 (E.D.N.Y. May 23,

2016)); see also D’Attore v. Salmon, 572 F. App’x 17, 18 n.1 (2d Cir. 2014) (noting that Rule 26

“does not require a report for treating physicians, because they are not ‘retained or specially

employed to provide expert testimony.’” (quoting Fed. R. Civ. P. 26(a)(2))); Ali, 2016 WL

3002403, at *7 (“Courts in this circuit have held that treating physicians may testify as fact,

rather than expert, witnesses.” (collecting cases)).

Because Plaintiff does not object to Defendants’ request that he limit Perez’ testimony to

non-expert witness opinions related to his treatment of Plaintiff, the Court grants Defendants’

4 Defendants make the same request as to Judi Beckford and Jean Luie. (Defs.’ Mem.

10–11.) Because the Court determines supra that Plaintiff will be precluded from calling either

Beckford or Luie at trial, it does not address Defendants’ concerns as to those witnesses.

motion and precludes Plaintiff from eliciting any expert testimony from Perez, if he is permitted

to testify.

IV. Conclusion

For the reasons set forth above, the Court grants in part and denies in part the motions.

Dated: September 27, 2024

Brooklyn, New York

SO ORDERED:

s/ MKB

MARGO K. BRODIE

United States District Judge