Mazzone v Alonso, Andalkar & Facherhttp://chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.nycourts.gov/reporter/pdfs/2025/2025_30147.pdf, P.C. 2025 NY Slip Op 30147(U) January 15, 2025 Supreme Court, New York County Docket Number: Index No. 152735/2019 Judge: Andrew Borrok is a fascinating look at the pre-trial motion practice and how it can shape a trial.
“Preclusion of evidence that Rosa Mazzone was concerned about being terminated is not appropriate Ms. Mazzone argues that the defendants should be precluded from introducing evidence that she was going to be terminated from RBC due to having insufficient assets under management and that the defendants should be precluded from preferring expert testimony that she would have been fired if she did not maintain more than a certain level of assets under management (AUM). In their opposition papers, the defendants argue that they were entitled to consider Ms. Mazzone’s expressed concerns over potential termination in rendering the advice that they gave. As to this point, they are correct. This relevant background information forms the context in which they rendered the advice they gave and is proper for consideration by the fact finder as to whether such advice was reasonable. However, to the extent that the defendants argue in the papers, that their proffered expert can testify on subjects that are either not within his personal knowledge as a fact witness or that are not proper expert testimony or otherwise outside the scope of his area of expertise, this is not permissible. In People v. Wesley, the Court explained “that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has ‘gained general acceptance’ in its specified field.” (83 NY2d 417, 422 [1994] [citing to Frye v US, 293 F 1013 [App DC 1923]). Brian Neville is not being offered as a fact witness. He did not work for RBC and he does not purport to have any personal knowledge as to any level of AUM required for continued employment at RBC. He is being offered as an expert in the securities industry. He does not purport to have relied on any scientific principle or procedure or to have reviewed any studies that could form the basis for an opinion as to required AUM to maintain employment at RBC or whether there is a general industry wide level of required AUM for employment at places like RBC. As such, he can not give an opinion, which at bottom amounts to mere speculation based on his unverifiable anecdotal experience, as to required AUM to maintain employment at RBC or whether Ms. Mazzone was at risk of losing her job based on the level of AUM that she had at RBC.
II. Introduction of Extrinsic Evidence for the purpose of modifying the Shusterman Mazzone Agreement is impermissible Ms. Mazzone correctly argues that the defendants may not introduce extrinsic evidence that predates the Shusterman Mazzone Agreement for the purpose of modifying the Agreement of Schusterman/Mazzone Group (the Shusterman Mazzone Agreement; NYSCEF Doc. No. 126), dated April 20, 2017. However, she is not correct that introduction of the extrinsic evidence for all other purposes is not appropriate. As the Appellate Division held, the issues for trial include whether AAF’s advice was reasonable under the circumstances and in accordance with Bessemer Trust. Depending on the advice at issue and when such advice was rendered, extrinsic evidence may well be relevant to the fact finder’s consideration of the reasonableness of the advice and thus can not be summarily precluded at this stage on a motion in limine. This requires individual consideration at trial by the Court as to whether consideration by the fact finder is appropriate.
III. Preclusion of testimony as to how FINRA Arbitrations work generally is not appropriate Ms. Mazzone argues that the defendants should be precluded from having an expert offer an opinion that FINRA panels generally split decisions and otherwise explain the FINRA panel’s decision that was actually rendered in the Shusterman/Mazonne matter. In their opposition papers, the defendants argue that expert testimony regarding FINRA panels and industry practice provides appropriate context to the fact finder in understanding whether the advice the defendants gave Ms. Mazzone under the circumstances was reasonable. As to this point, they are correct. However, the plaintiffs are correct that the defendant’s expert can not speculate as to why the FINRA panel issued the decision in the Schusterman/Mazzone matter that it issued. The decision speaks for itself and speculation as to the basis for the decision is inappropriate for expert testimony.