Pm 1 Page 3
I UNITED STATES DISTRICT COURT 1 (WI-[EREUPON, the witness was duly
2 FOR THE DISTRICT OF CONNECTICUT 2 sworn.)
3 CROWN THBATRES. I-—I’. ) 3 GLENN GARFINKEL,
4 I’I1111111f1'» ) 4 called as a witness herein, having been first duly
5 ·¤8¤1¤S1· ) Case N0- 5 swom, was examined and testified as follows:
6 MILTON L. DALY, TAYLOR-LEIGH,) 3:02 CV 2272 (AVC) 5 EXAMINAHQN
1 mc., ANNE E. DALY, JAMES c. ) 7 BY MS. LANZA:
8 CELI-A. o.u.s. DEVELOPMENT, ) 8 O. Good morning, Mr. Gartinkel. My name is
9 INC-» JAMES T- MARTINO» JAMES) 9 Marisa Lanza. I'm with the law finn of Milber
10 THOMAS MARTINO, ARCHITECT, ) 10 Makris Plousadis & Seiden, and I represent one of
11 P.C, and RCD HUDSON, LLC, ) 11 the defendants, James T. Martino and James Thomas
12 Defendants. ) 12 Martino Architects in a lawsuit commenced by Crown
13 13 Theatres that is currently pending in the federal
14 'Ihe deposition of GLENN GARFINKEL, called 14 court for the district of Connecticut. I just have
15 for examination, taken pursuant to the Federal Rules 15 a few instructions for you before we begin today,
16 of Civil Procedure of the United States District 16 which I know you're an attomey. But I need you to
17 Courts pertaining to the taking of depositions. 17 listen to my questions, and unless you tell me
18 taken before ELIZABETH A HONDROS, a Notary Public 18 otherwise, I'rn going to assume that you understand
19 within and for the County of Cook, State of 19 my question and are able to answer it truthfully.
20 Illinois, and a Certified Shorthand Reporter of said 20 I good you to lot me finish my qugstigm
21 state, at Suite 4000, One IBM Plaza, Chicago, 21 As you know, the court reporter cannot take us both
22 I|1i¤¤iS.¤¤ 1I1¤ 191-I1 day ef J¤¤¤¤-FY. A-D· 2004. 1*1 22 speaking at the same time. And I also need to ask
B 10:15 a.m. 23 you to keep all your answers verbally.
24 24 Do you understand those instructions?
Page 2 ` Page 4
1 PRESENT: 1 A. I do.
2 . 2 Q. Cm you give me your full name for the
3 JENNER se BLOCK, LLP, 3 record?
4 (One IBM Plaza, 4 A. Glenn Todd Garfinkel.
5 Chicago, Illinois 60611, 5 Q. Cm you give me your present employer?
6 312-222-9350), by: 6 A. Grcbart and Levick, LLC.
7 MR. CRAIG C. MARTIN and 7 O. Where are they located?
8 MR. ADAM HIRSCH, 8 A. Dterlzield, Illinois.
9 appeared on behalf of the Plaintiff; 9 Q. Hozv long have you been with them?
10 10 A. Snce September lst. Excuse me -- yes,
11 MILBER MAKRIS PLOUSADIS & SEIDEN, LLP, 11 roughly September. August 24, September 1,
12 (108 Corporate Park Drive, Suite 200, 12 something like that.
13 White Plains, New York 10604, 13 Q. DOS?
14 914-681-8700), by: 14 A. YG. '
15 MS. MARISA IANZA, 15 Q. Cm you give me your education
16 appeared on behalf of Defendants 16 background from post-high school and on?
17 James T. Martino and James Thomas 17 A. I attended the University of Illinois at
18 Martino, Architect, P.C. 18 Champagne-Urbana, bachelor of arts and sciences.
19 19 Q. Whit year did you get that degree?
20 20 A. I984.
21 21 Q. Did you have a bachelor of arts in --
22 22 A. Political science was my major.
` ‘ 23 REPORTED BY: ELIZABETH A. I-IONDROS, C.S.R., 23 MR. MARTIN: Tl1at's why you had to go to law
24 Certificate No. 84-4241 24 school?
A I M I J 1 (Pages 1 to 4)
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Page 73 Page 75
1 After Milt Daly‘s departure for work in 1 Q. And externally, whose approval would be
2 progress, they would then be -- what previously was 2 required?
3 submitted to Milt Daly and Bob Beacher and Jim 3 A. Generally, the construction consultant,
4 Martino for approval, it was submitted to both David 4 Bob Beacher, and the architect, Jim Martino, but,
5 Clifford and myself. 5 again, I wasn‘t involved in that. That's just my
6 O. So from 1998 to when Mr. Daly left in 6 general recollection of the procedure.
7 2001 -- 7 Q. Do you know whether any pay applications
8 MR. MARTIN: Hequit on June 1, 2001. 8 were paid by Crown without the approval of either
9 BY MS. LANZA: 9 Milt Daly, Bob Beacher, or Jim Martino?
10 O. -- dd you have an opportunity to review 10 MR. MARTIN: Object --
11 any payment applications? 11 BY THE WITNESS:
12 A. No I did not. 12 A. I don‘t think I can answer that.
13 O. Doyou know who was responsible for 13 MR. MARTIN: Object to the form of the
14 reviewing the payment applications on behalf of 14 question.
15 Crown? 15 BY MS. LANZA:
16 A. Milt Ddy. 16 Q. The question is: Do you know if any pay
17 Q. Did anyone else review pay applications 17 applications were paid by Crown without the approval
18 at Crown? 18 of Milt Daly, Bob Beacher, or Jim Martino?
19 A. Review in what sense? 19 MR. MARTIN: Object to the form of the
20 Q. In any sense. Who reviewed pay 20 question, lack of foundation.
21 applications for payment? 21 In other words, the Hrst question is:
22 A. For approval? 22 Did you review all the pay applications? He's
23 Q. For approval at Crown. 23 testified that he didn't review all the pay .
24 A. To the best of my recollection, Milt 24 applications, so how could he know that? ~
Page 74 I Page 76
1 Daly. 1 MS. LANZA: He might know that as being
2 O. And who would review pay applications 2 in-house counsel to Crown or executive vice
3 for payment at Crown? 3 president.
4 A. Can you -- well, Milt Daly and the other 4 MR. MARTIN: Not without reviewing all the pay
5 gentlemen, the other required signatures. 5 applications.
6 Q. I'm just talking about people at Crown. 6 THE WITNESS: Can I ask you a question?
7 A. I understand. 7 BY MS. IANZA:
8 MR. MARTIN: By saying Crown, you're excluding 8 Q. There's a question pending, so you need
9 Beacher and Martino? 9 to answer my question first.
10 MS. LANZA: I'm excluding them for now. I'm 10 MR. MARTIN: You don‘t need to answer her
11 just talking about Crown personnel. 11 question if you don‘t understand it.
12 BY THE WITNESS: 12 MS. LANZA: If he doesnt know, he doesnt
13 A. Under policy, to the best of my 13 know. That's a sufdcient answer.
14 knowledge, after the required signatures for 14 BY MS. LANZA:
15 approval as to approval, then it would go down to 15 Q. My question is: Do you know if any
16 the accounts payable department. Then the accounts 16 payment applications were paid without the approval
17 payable clerk would then make payment after all the 17 of Milt Daly, Bob Beacher, or Jim Martino?
18 required approvals were there. 18 A. Whatever analogy I have is only in the
19 BY MS. LANZA: I 19 scope of a subsequent investigation.
20 Q. And whose required approval was 20 Q. Do you know if any pay applications were
21 necessary to issue payment for the projects at Crown 21 paid by Crown?
22 or any other entity? 22 A. Yes.
23 A. Internally, Milt Daly‘s would be 23 Q. Do you know how many?
24 required. 24 A. No, I do not.
4 19 (Pages 73 to 76)
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1 Q. Did Mr. Crown in his discussionswith 1 the witness here.
2 you about the pending litigation ask you for your 2 MR. MARTIN: I mean did you call Ticket Master
3 legal advice? 3 today? That's relevant. I mean under your theory
4 MR. MARTIN: I just instructed him not to 4 of relevance, everything is relevant.
S answer these questions, including the substance of 5 MS. LANZA: I‘m not going to discuss the
6 the conversations. 6 relevancy of the question with the witness here in
7 Don‘t answer the question. 7 the room, Mr. Martin.
8 MS. LANZA: Well, I‘m trying to establish 8 MR. MARTIN: Well --
9 whether they were discussing legal issues. 9 MS. LANZA: Why not? Because it goes to
10 MR. MARTIN: You‘ve already done that. You‘ve 10 whether -- it also goes to his credibility if he's
11 already honed in on the litigation, and now you're 11 continued to speak to Crown Theatres over issues, if
12 asking him about the substance of the conversations. 12 he's still friendly with Mr. Crown.
13 Don't answer the question. It's 13 MR. MARTIN: Go ahead. You can answer the
14 privileged. 14 question.
15 MS. LANZA: It's privileged only if he -· 15 BY THE WITNESS:
16 MR. MARTIN: You can argue with me. 16 A. I have spoken to numerous employees for
17 MS. LANZA: -- if Dan Crown was seeking legal 17 Crown Theatres.
18 advice from Mr. Garfrnkel. 18 BY MS. LANZA:
19 MR. MARTIN: I've already instructed him. If 19 Q. Can you list those employees that you‘ve
20 you want to take it up somewhere else, take it up. I 20 spoken with?
21 MS. LANZA: You can mark it. 21 A. Jeremy Welrnan, Tom Becker, Chris Douger,
22 BY MS. IANZA: 22 Catherine Nonnemacher, Suzie Herrera, Beth Cimino,
23 Q. Did you speak to anyone else at Crown 23 Gigi Coutermash. I‘ve spoken to every -- ‘
24 after you left in Z003? 24 O. Any of those individuals that you‘ve
Page 206 ' Page 208
1 A. About this litigation? 1 spoken with, have you discussed the pending
2 Q. No, in general. 2 litigation with them?
3 MR. MARTIN: What does it matter if he's 3 A. No.
4 spoken in general? 4 Q. Have you spoken to Milt Daly since you
5 BY MS. LANZA: 5 left Crown's employment in 2003?
6 Q. Well, you spoke to Dan Crown. Have you 6 A. No.
7 spoken to anybody else? 7 Q. Have you spoken to Bob Beacher since
8 MR. MARTIN: It's not relevant. How is it 8 you‘ve left Crown's employment in 2003?
9 relevant? How is it reasonably calculated unless 9 A. No.
10 you want to talk about the litigation? 10 Q. Have you spoken with Mr. Martino since
11 MS. LANZA: Well, his connection to Crown 11 you left Crown's employment in 20037
12 after left in 2003. 12 A. No. _ ._
13 MR. MARTIN: You‘ve already asked him what his 13 MS. LANZA: Let's take a five-minute break
14 connection was. 14 because I think I‘m done.
15 MS. LANZA: I asked him if he spoke to Dan 15 (WI-{EREUPON, a recess was Ind.)
16 Crown. He said four or five times. 16 BY MS. LANZA:
17 MR. MARTIN: Yes. And so what if he spoke to 17 Q. Mr. Garfmkel, you testified that you‘ve
18 somebody else? What does it matter? 18 read Crown's complaint against Mr. Martino and his
19 MS. IANZA: Then he can answer it. 19 firm, correct?
20 MR. MARTIN: What does it matter? How is it 20 A. And others, yes.
21 relevant to this litigation? 21 Q. During your employment with Crown from
22 MS. LANZA: His connection to Crown in this -— 22 '98 until June of 2001, did you expect or was it
23 MR. MARTIN: That he talked to somebody? 23 your knowledge that Mr. Martino was to review each
24 MS. LANZA: I‘m not going to discuss it with 24 and every lease agreement prior to signing a payment
U - I 52 (Pages 205 to 208)
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1 application? 1 MR. MARTIN: 'l`here's no written agreements?
2 MR. MARTIN: Do you mean -- so that the 2 THE WITNESS: Right, a written agreement.
3 question is clear, do you mean was it his 3 BY MS. LANZA:
4 expectation that Mr. Martino would review the big, 4 Q. Is it your understanding that the AIA
5 thick lease document -- i 5 general conditions were part of any sort of verbal
6 MS. LANZA: Prior to signing the payment 6 agreement between Crown and Mr. Martine'?
7 application. 7 MR. MARTIN: Object to the form of the
8 MR. MARTIN: -— prior to each payment 8 question. It's been asked and answered. He
9 application? So before he signed each one, he'd 9 testified -— we went through this earlier. He
10 read it again? 10 testified that it was custom and practice. He
ll MS. LANZA: Yes. 11 testified about AIA He testified about his
12 BY THE WITNESS: 12 knowledge of architects. I mean, there's no reason
13 A. I don‘t know what custom and practice is 13 to go through this again.
14 for architects. 14 BY MS. LANLA:
15 MR. MARTIN: So you did not have any 15 Q. What about Mr. Daly? Did you have an
16 expectations? 16 expectation that he would review the lease ;
17 THE WITNESS: I have an expectation that he 17 agreements before approving each and every pay i
18 would absolutely be familiar with the scope of our 18 application?
19 work on an ongoing basis in the review of any and 19 A. No, I would not have that expectation. .
20 all -- anything in connection with the project. 20 But, again, Mr. Daly was intimately -— was familiar
21 BY MS. LANZA: 21 with who did what, again, because he was involved in ,
22 Q. What was the basis for your expectation 22 the original discussions between the landlords who
23 that Mr. Martino would be enough with the 23 did -- as to what party is responsible for what
24 construction projects? 24 work. ¥
Page 210 I Page 212
1 A. Based on my general understanding of a 1 Q._ Did you have knowledge of what the
2 request for payment documentation and a 2 responsibilities for what the various parties were .
3 certification that is signed by the architect, 3 for each project? `
4 just-- and in my general knowledge of what an 4 A. Yes. °
5 architect is to review, my expectation would be that 5 Q. Do you know why the payment applications
6 the architect would be extremely familiar, if not 6 were never submitted to you also for approval?
7 intimately familiar, with the scope of the work and 7 A. It was not within the purview of my job. ,
8 who did what. 8 Q. Who else would have had knowledge of P
9 Q. Now, the AIA contract or the AIA 9 what was within the various parties' scope or
10 documents that you keep referring were never part of 10 responsibilities at Crown?
11 Mr. Martino's agreement with Crown because there was 11 MR. MARTIN: Objection, calls for speculation.
12 no written agreement with Crown except for the 12 BY MS. LANZA:
13 Minnesota project? 13 Q. Would Tom Becker have knowledge of what
14 MR. MARTIN: Object to the form ofthe 14 the responsibilities to various parties were? I
15 question. That's a teratology. 15 MR. MARTIN: Same objection, calls for him to
16 BY MS. LANZA: 16 speculate. Ask Becker.
17 Q. Was the AIA documents you were referring 17 MS. LANZA: He testified that Mr. Martino
18 to referenced in any sort of documents as being part 18 should have had it. So I'm asking should Tom Becker
19 of Mr. Martino's scope of work? 19 have had the same knowledge?
20 A. There is no -- 20 MR. MARTIN: Same objection. Ask Tom Becker.
21 MR. MARTIN: Objection to the form of the 21 BY MS. LANZA:
22 question. 22 Q. You can still answer the question. He
23 BY THE WITNESS: 23 made his objection.
24 A. Again, there's no agreement. 24 A. You'll have to ask Tom Becker. I dont
l W ylilidmnmui an v mm if l l H 53 (Pages209to 212)
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