SUPERIOR COURT OF NEW JERSEY LAW DIVISION - ESSEX COUNTY DOCKET NO. ESX-L-10253-09 CAROLYN HILLMAN, Plaintiff, TOWNSHIP OF MONTCLAIR and LUIS: MENDEZ and JUDY VELLA, Defendants DEPOSITION OF STEPHEN SCHUCKMAN Wednesday, February 23, 2011 TAYLOR & FRIEDBERG 60 Washington Street Morristown, NJ 07960 973-285-0411 TAYLOR & FRIEDBERG, LLC 4973) 285-0411won 10 a 12 13 14 15 16 17 18 19 20 al 22 23 24 25 TRANSCRIPT of the deposition in the above-entitled by and before MARIA LYNN BUTRICO, a Certified Court Reporter and Notary Public of the State of New Jersey, held at MONTCLAIR COMMUNITY SERVICE CENTER, 219 North Fullerton Street, Montclair, New Jersey, on Wednesday, February 23, 2011 commencing at 10:20 a.m. APPEARANCES: CANDICE A. PLUCHINO Attorneys for Plaintiff 22 Alpine Drive Perrineville, New Jersey 08535 LAW OFFICES OF DOREEN M. RYAN Attorneys for Defendants, Luis Mendez and Judy Vella 65 Jackson Drive, Suite 302 Cranford, New Jersey 07016-0200 BY: MICHAEL FORCINO, ESQ. WEINER LESNIAK Attorneys for Defendants, Township of Montclair 629 Parsippany Boulevard Parsippany, New Jersey 07054 BY: ALAN BARATZ, ESQ. TAYLOR & FRIEDBERG, LLC (973) 285-041110 aL 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INDEX WITNESS DIRECT CROSS REDIRECT STEPHEN SCHUCKMAN BY: Ms. Pluchino 4 50 Mr. Forcino 49 EXHIBITS NUMBER DESCRIPTION P-1 Phone log with handwritten notes P-2 Inspection notes July '09 P-3 Phone log September 3th TAYLOR & FRIEDBERG, LLC (973) 285-0411 RECROSS PAGE 21 21 51 Page 31 STEPHEN SCHUCKMAN, residing at 2 37 Oak Grove Road, Caldwell, New Jersey, having 3 been duly sworn, testifies as follows: 4 DIRECT EXAMINATION BY MS. PLUCHINO: 5 Q Good morning, Mr. Schuckman. 6 A Good morning. 7 Q What is your occupation? 8 A I'ma consulting forrester, self-employed. 9 Q Is there a name for your business? 10 A My business is First Mountain Arboriculture. 1 Q Arbori -- 12 A Culture. 13 Q Arboriculture is one word? 14 A Yes: 15 Q What is the principle place of business? 16 A 37 Oak Grove Road, Caldwell, New Jersey. 7 Q And for whom do you consult? 18 A Borough of Glen Ridge, Township of Bloomfield, 19 Township of Montclair, Borough of Hawthorne. 20 Q And how long have you been a consultant for 21 Montclair? 22 A July 2008. 23 Q What is your educational background? 24 A Bachelor degree in Biology and Chemistry. 25 Q From? Page 4 TAYLOR & FRIEDBERG, LLC (973) 285-041110 a 12 13 14 15 16 17 18 19 20 a1 22 23 24 25 A Quincy College, Quincy, Illinois. Masters degree in Botany from University of Missouri Columbia. Q Masters in Botany from where? A University of Missouri Columbia. Q Anything else? A Other than my professional certifications. You want those? Q Do you have a Cv? A I did not bring it, I'm sorry. I do have it. I can get you one, yes, absolutely. I meant to bring that in, I apologize. Q And for how long have you been working as a consulting forester? A Since 2003. Q Prior to that what you did for -- A Manager for VanHaus for ten years. Prior to that I have was supervisor for parks and shade tree for the Township of Montclair for five years. Q As consultant for Montclair in your capacity as an arborist or forester, what are your duties and responsibilities? A One is to respond to resident's concerns or complaints, I write and supervise -- I write specifications and supervise ali outside contractors for tree removal, tree planting and tree pruning and Page 5 TAYLOR & FRIEDBERG, LLC (973) 285-0411es woN 10 1 12 13 14 15 16 17 18 19 20 ar 22 23 24 25 Page 6 then I do routine tree health care inspections. which is to respond to resident complaints and concerns, how do you become notified of the complaints and concerns? A service center where they can leave a voice mail. I have an email site that's on the township website. township location on a regular basis? Q I have a phone extension here in the community Q Every Wednesday, one day a week. Varies from six to 10. A Q A Q A Six eight. Q inspection, do those also take place when you're here With respect to your first responsibility, Do you come to this location or to the And how many hours a day do you spend? A.m. to 10 hours per day, averages about seven or And with respect to the routine tree on Wednesday? A Yes. Q Over the course of time that you've been a consultant to the Township of Montclair have you ever been here more than once a week to do your duties? A Yes. Q Would that be on an as needed basis or was TAYLOR & FRIEDBERG, LLC (973) 285-041110 1 12 13 14 15 16 17 18 19 20 ai 22 23 24 25 Page 7 that part of your -- A On an as needed basis. Q What would be a need for you to be here more than one day a week? A During tree planting often times the contractors work consecutive days and those plantings have to be inspected. During fall and spring, for example, the routine inspection I try to increase just because those are the opportune times to inspect the trees health, of course in storms if needed. Q With respect to your other obligations in Glen Ridge, Bloomfield, Hawthorne, are you also there —- A Once a week in Bloomfield, half day in Glen Ridge, half Gay in Hawthorne. Q And also as needed? A Yes. Q Have you been servicing all of those towns for a number of years now? A Bloomfield since 2006, Glen Ridge since 2003, Hawthorne since October of 2010. Q Let's talk about the specifications and supervising contrectors for tree removal. First of all, what specification are you referring to? A Technical specifications that I have written both myself and with colleagues. TAYLOR & PRIEDBERG, LLC (973) 285-0411Page 8 1 Q What are the specs for? 2 A Specifications for tree and stump removal would be 3 one set. Specifications for new tree planting and 4 installation and specification for tree pruning. 5 Q And are these specifications published 6 anywhere in a book or on the website or somewhere 7 else? 8 A I have them on file. 9 @ So what is the specification called or what 10 type of -- 11 A They're technical specifications that are included 12 in bid packages. Since we contract that out by law we 13. can go out to public bid. 14 Q So specs that you're talking about become part 15 of your -- basically your responsibility for the 16 township; correct? 17 A Yes. 18 Q Did you bring any copies any of specs that you 19 wrote with you? 20. A I can print them out very quickly. 21 MR. BARATZ: Not today. 22 MS. PLUCHINO: Why not? 23 MR. BARATZ: I don't have time to review them 24 since you only requested them today. 25 MS. PLUCHINO: I did a DI notice for a whole pH TAYLOR & FRIEDBERG, LLC (973) 285-0411Page 9 1. lot of things. This is germaine to this deposition. I've waited months for this. wn MR. BARATZ: I'11 give you a deposition if 4 there's a document production request. Now, I don't 5 know, he mentioned several specifications. If they're 6 voluminous I need to review them with him and I don't 7 think that counsel wants to wait here while T do 8 that. It could take an hour. a BY MR. PLUCHINO: 10 Q Axe the specs voluminous for tree stump 1. removal? 12 A Page number? 13 Q How many pages? |, 14 A 12 to 15. 15 Q Can you get them? 16 MR. BARATZ: There were other specifications. 17 BY MS. PLUCHINO: 18 Q Let's go down the line. 19 How about the tree pruning, how long are the 20 specs for tree pruning? 21 A Probably the same. 22 Q How about for new tree planting? 23 MR. BARATZ: There's 40 pages worth of 24 materials I need to review to prepare for the 25 deposition. I am not able to do that now. We can TAYLOR & FRIEDBERG, LLC (973) 285-041110 a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 10 reschedule this for next Wednesday. (Whereupon a discussion was held off the record.) BY MS. PLUCHINO: Q Mr. Schuckman, with respect to the specs that you wrote for tree and stump removal, are they uniform for all the different towns you work at or is each one | different? A They're modified according to the unique demographics of each community. Q With respect to the specs for tree and stump removal what is basically the sum and substence? A Basically they dictate the type of work to be performed, the standards that are te be followed and then typically, you know, start, completion dates, and any other requirement unique to that community. Q Let me ask you this now, where do you get the standards from? A ‘There are national standards called the ANSI standards for a 300 series for tree and shrub care. There are ANSI standards for safety requirements and those are the primary standards that we follow. Q The specifications and the standards with respect to any of these things, whether they have to do with tree and stump removal, tree pruning itself, TAYLOR & FRIEDBERG, LLC (973) 285-041110 1. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 11 in your specs that you offer that you prepared for bid and which were accepted obviously by the township; correct? A Yes. Q Any the schedules included there, how often do any of these activities take place? A Bach time we would bid the job, that's a separate job so it's a separate time pericd. So, for example, if we bid tree removal for the spring of 2011 there would be a set time for them to complete the job. Q With respect to tree removal who makes the decision as to what tree, if any, needs to be removed within the Township? A Usually it's myself and if there's any question then I get a second opinion from my shade tree foreman. Q How do you make a determination that a tree needs to be removed? A I follow a pretty standardized criteria. It's followed by many of my colleagues which is, is the tree dead, if the tree is diseased, the tree poses unacceptable safety risk to the public. Q When you're talking about tree and stump removal does that include or is part of it root removal? TAYLOR & FRIEDBERG, LLC (973) 285-0411Page 12 1 A No. We don't trim or shave roots. 2 Q So if roots grow out too far the whole tree 3 comes down? 4A Define too far. 5 Q let me go back to some of your other 6 responsibilities. 7 You told us one of your job duties is routine 8 tree inspection. Was does that entail? 9 A As time permits I will go street by street, walk 10 and inspect the condition of the tree. Usually that 11 is, although it is a routine, it's usually "flagge 12 something that usually I notice. 13 Q Would that be you're driving by and you see 14 something? 15 A Yes. 16 Q Do you in addition to walking street by street 17 also do a drive-by inspection? 18 A That's a windshield survey. 19 Q How often in the course of your duties here in 20 Montclair do you do windshield surveys? 21 A Any time I'm on the road typically I am observing 22 trees, It's primarily spring and fall. It's 23. difficult to determine the condition of the tree when 24 they're not in leaf. 25 Q Would the street by street walk through or TAYLOR & FRIEDBERG, LLC (973) 285-0411won 10 1 12 13 14 15 16 L7 18 19 20 21 22 23 24 25 (ees walk-bys include inspecting the tree from top to bottom root to top? A I don't do a complete inspection unless something warrants it. @ In the course of your duties with the township when you do the walk bys do you prepare any type of notes, keep any type of log or prepare any type of documentation? Af only make hand notes to anything that either warrants action or return inspection. Q And what warrants that? A Tree is showing unusual color, unusual health, possible indication of insects or diseases that is not obvious at the time of inspection, but certainly is suggested. Q And of the trees that you're inspecting either the walk bys or the drive bys, do some of these trees come up next to public sidewalks? A Yes. @ And in the walk throughs do you also inspect the sidewalk that abuts the tree? A No. Q Have you on occasion when you've done this, don't you inspect the sidewalk? A Not my responsibility. TAYLOR & FRIEDBERG, LLC (973) 285-0411 Page 13 |oa au 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 14 Q In the course of your duties for this township which respect to inspecting trees in the walk through, have you ever on occasion seen a tree where a tree root has lifted the sidewalk? A Yes. Q Would that be something you would be looking for in the course of your duties for inspection? MR. BARATZ: Objection to the form. You can answer. THE WITNESS: No. BY MS. PLUCHINO: Q Why not? A Not responsible. Q Whose responsibility is it? MR. BARATZ: Objection. You can answer it. THE WITNESS: I get code enforcement. MR. BARATZ: Counsel does not want you to guess. MS. PLUCHINO: Can you not interrupt his -- MR. BARATZ: I never do. What I will say to you, Mr. Schuckman, is that I don't want you to guess. You're welcome to talk in terms of your best estimate or best knowledge what you know from your training and experience in the township, but guesses are not what this is about. TAYLOR & FRIEDBERG, LLC (973) 285-0411wir 10 a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 15 BY MR. PLUCHINO: Q Mr. Schuckman, you have been at Montclair Township in some capacity for how many years? A Officially as a consultant just over two. Q And before that when you -- A I was superintendent of the Park Shade Tree for five. Q Didn't you hold another position with Montclair? A No. Q You've pretty much been working for the township for 7 years? A Correct. Q I assume in those seven years you have become familiar with whose job is what -- MR. BARATZ: Objection to the form of the question. You can answer. THE WITNESS: J was familiar with the governing body in the 1993-1998 period. I cannot say I know that now. BY MS, PLUCHINO: Q In the course of time you do walk throughs you said you do look to see if tree roots are pushing up sidewalks? A Yes. TAYLOR & FRIEDBERG, LLC (973) 285-0411Page 16 @ In the course of your duties de you work side by side with someone else with respect to any type of condition where a tree has affected some other part of township property? MR. BARATZ: Objection to the form. You can answer. THE WITNESS: No. BY MS. PLUCHINO: Q When you do those walk bys do you do them alone or with someone else? A Alone. Q In the course of your time, several years working for this Township you said on occasion you've seen roots push up a sidewalk? A Yes. Q Is it part of your job duties and responsibility to notify someone else in the Township of a condition that you've seen? A I do notify the Department of Code Enforcement. Q Would it be fair to say its code enforcement's responsibility then? A Yes. Q And who is the head of code enforcement? A I think it's Frank, his last name is Leslie. Q And how long has Frank Leslie -- TAYLOR & FRIEDBERG, LLC (973) 285-0411eon 10 il 12 13 14 15 16 a7 18 19 20 21 22 23 24 25 A I do not know. Q When you advised Mr. Leslie of this condition is that something you do in writing or orally or something else? A Orally. Q Do you just pass by, do you make an appointment to meet with him or something else? A Usually a phone call. Q And do you know the reason why it is that you notify Frank Leslie who is the head of code enforcement when you make an observation that a tree is pushing up on the sidewalk? A If I report it the sidewalk is lifted up extensively and it proposes a safety hazard. Q Why is it that you contact code enforcement with this information as opposed to anybody else in the township? A This would be the department responsible for enforcement of property maintenance. Q In the course of your walk-byes have you ever taken any photographs? A Of trees, yes. Q And what is the reason why you do windshield surveys as well as walk throughs? A Windshield surveys are an old timers technique. Page 17 TAYLOR § FRIEDBERG, LLC (973) 285-041110 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 18 They allow you to do a rapid survey within a short period of time. You can cover X numbers of trees much faster than you could walking. Q How often do you do those? A Usually once in the spring, once in the fall. Q When you do the walk throughs you told me you write hand notes. I assume you can't cover the whole township in one or two days. How is it that you know what streets you already walked through? A I have a township map that I personally created of my own little zones. I try to do each zone complete before I move onto another zone. I will walk and try to inspect all the trees on a given street at the time that I'm there. Q Now, you told me the reason why you would notify code enforcement if a tree root is pushing up a sidewalk is because it poses a safety hazard; correct? A Yes. @ what, if any, responsibility do you have as a consultant arborist to that condition posing a safety hazard on township property? MR. BARATZ: Objection. BY MS. PLUCHINO: Q Besides notifying code enforcement, is there TAYLOR & FRIEDBERG, LLC (973) 285-0411on 10 a 12 13 14 15 16 uy 18 19 20 21 22 23 24 25 anything you're responsible for as the town arborist with respect to this type of safety hazard? A No. Q Mr. Schuckman, how long do you keep those hand notes that are generated when you do your walk-by? A I file them at the end of every year. Q File them where? A My office. Q In other words, you keep them for a while? A Yes. Q Now, at some point were you contacted to go to the premises of 70 Oakwood Avenue concerning a condition of a tree located in front of that house? A Yes. Q How were you contacted to go there? A Phone call from the resident. Q Do you remember who made that phone call? A I believe his name was Mr. Estevez. Q Mendez? A I'm sorry. I have so many people who I can put an address to a tree, I can't guarantee a name to a tree. Q Did you have a conversation with Mr. Mendez on the phone? A Yes. Q When did that conversation take place? Page 19 TAYLOR & FRIEDBERG, LLC (973) 285-041110 iL 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 20 | A I believe it was summer of 2009. Q Is that based upon your memory? A I do have it recorded. Q What's recorded, the phone call? A The date of his call and, you know, the date of my visit. Q In what form is it reported? A Just a handwritten note. Q Where would you keep that? Is it in a folder for 70 Oakwood? A I have a yellow pad which is a weekly phone log. It's not so sophisticated and then I return the phone call to the resident. If the resident requests a site visit then I will make that site visit. Q Do you have a present memory as we sit here today of the phone call you had with Mr. Mendez? A Not in any detail. Q Did you take notes on your phone call? A I would have written down the address, the name, the return phone number and the request or the concern of the resident. Q Mr. Schuckman, before coming to the deposition today, I forgot to ask you this before, did you review any documents of any type in order to refresh your memory to assist you with your testimony? TAYLOR & FRIEDBERG, LLC (973) 285-0411Page 21 1 A Yes. ia! °O What did you review? 3 A I just reviewed the initial complaint and reviewed 4 -- I looked at the date of the sidewalk permit. 5 @ When you say initial complaint, what 6 complaint? 7A My phone record for the date of the phone call and 8 then the dates that I responded. 9 Q Do we have -- 10. A I can go get it. 11 (Whereupon a there was a short recess.) 12 (Whereupon Exhibit P-1 is received and marked 13 for Identification by the Court Reporter.) 14 BY MS. PLUCHINO: 15 Q Mr. Schuckman, other than what we just marked 16 as P+1 for Identification, do you have any other 17 notes, whether handwritten, typed or anything else, 18 concerning any of the communication or interaction you 19 had with the homeowners or the tree located in front 20 of 70 Oakwood? 21 A I have inspection notes dated July 7th, 2008. The 22 fourth down, 70 Oakwood. 23 (Whereupon Exhibit P-2 is received and marked 24 for Identification by the Court Reporter.) 25 THE WITNESS: Correction. It was July 8th, TAYLOR & FRIEDBERG, LLC (973) 285-041110 1 12 13 14 15 16 17 18 19 20 au 22 23 24 25 Page 22 2009. I said 2008. I wanted to be sure. MR. BARATZ: You said the summer of '09 was -- THE WITNESS: I wanted to be sure. It was July 8th, not of '08. BY MS. PLUCHINO: Q Apart from what we now marked as Exhibit P-1 and P-2 for Identification did you review any other documentation in order to assist you with your testimony this morning? A Only the sidewalk opening permit. Qo Are you aware that the Mr. Wood testified in this case? A Yes. Q Did you have an opportunity to read the transcript of his testimony? A I had the opportunity, I did not read it. Q Did anybody give you the sum and substance of Mr. Wood's testimony? MR. BARATZ: Other than your attorney. THE WITNESS: No. BY MS. PLUCHINO: Q Did you ever discuss this matter with Mr. Wood directly? A Only that I was going to be deposed. Q Did that conversation take place after he was TAYLOR & FRIEDBERG, LLC (973) 285-0411Page 23 1 already deposed? 2 A Not positive. 3 Q Did he tell you what kind of questions or what 4 kind of information he was asked? 5 A No. 6 Q Apart from Mr. Wood did you discuss this 7 matter, any of the issues from this lawsuit with 8 anybody else that is employed by the township? 9° A No. 10 Q Now, going back to the phone call with 11 Mr. Mendez, as we sit here today, apart from the one 12 line note that you have here, do you have a present 13 recollection of the sum and substance of the 14 conversation you had with Mr. Mendez? 15 A No. I dontt recall a phone conversation. I 16 checked that I called him back and informed him of my 17 inspection. I did have an on-site visit with 18 Mr. Mendez. 19 Q In the phone cali did he tell you anything 20 about why he was calling the town about the tree? 21 A The phone message as you see it's dated the 22 second. I don't write down the complete conversation 23 but sidewalk means he requested or had a concern about 24 a sidewalk being lifted by a tree. 25 Q At some point you went out to the house? TAYLOR & FRIEDBERG, LLC (973) 285-04111 2 3 4 ao 10 a 12 13 14 15 16 17 18 19 20 a1 22 23 24 25 Page 24 A Correct. Q Before you went out there did you speak to him on the phone? A No. Q Did you speak to his wife on the phone? A No. Q Based upon the message that was left on your answering machine or whatever you went out to the house? A I went to the site, I did the inspection. Q When was it that you went to the site? A On July 8th, 2009. Q When you went to do the inspection did you go alone or with someone? A By myself. Q When you got there did you ring the bell? A No. Q Did you conduct an inspection at the time? A Yes. Q What did your inspection consist of? A Two trees present at the site in front of the residence. They were both Zelkova Serrata. The slabs were lifted significantly. I put very high. Q There you own wrote Zelkova? A Serrata. TAYLOR & FRIEDBERG, LLC (973) 285-0411won 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Does that have a more common name? A No. Zelkova is the term they use in the trade. Q Do you know when that tree was planted? A I do not. Q Are there any other Zelkova Serrata in other places within the township? A Yes. Q Is that something that is common in the township? A TI wouldn't use the term common. It was planted extensively in the '90s. It was found to be the replacement for American Elm. Q Do you say in the '90s they were planted? A Yes. Q Educate me for a second. What type of tree is that? A It's a non-native tree. It's from Japan, from South Fast Asia. It's a member of the Elm family. very similar characteristics. They tend to be medium, large shade tree. Q Now, you testified that you saw that the slabs were lifted very high? A Correct. Q Did you measure them? A No. Page 25 | TAYLOR & FRIEDBERG, LLC (973) 285-0411Page 26 1 Q Did you take any photographs? 2 A No. 3 Q Do you on occasion take photographs when 4 you're called out on a complaint like this? 5 A If I felt it was warranted. 6 Q Did you feel it was warranted in this case? 7° A No. 8 Q Why not? Ha A The resident was aware of the condition, had that 10 concern and asked for my inspection and thoughts and 11 then I responded accordingly. 12 Q How long were you at the premises? 13. A Perhaps five, ten minutes. 14 Q Did you see anyone connected with the owners 15 of the house? 16 A No. 17 Q Looking at your sheet, Exhibit-2 for ID, you 18 have checked and then three asterisks in front of this 19 one. Why? 20 A Three asterisks means to me it required a response 21 to the resident. 22 Q What's the check mean? 23 A Check means I looked at the tree. 24 Q Now, Mr. Schuckman, you told us earlier that 25 on occasion on your walk through you have noticed TAYLOR & FRIEDBERG, LLC (973) 285-0411Page 27] 1 trees where the roots have pushed up sidewalks. Bee A eset 3 Q In this particular situation when you did an 4 inspection, do you make a determination why the slabs 5 were lifted very high? 6 A Yes. Ete Q What was the determination? 8 A Due to tree root growth. 2 @ mn any of the prior occasions where you have 10 seen sidewalk slabs lifted high because of tree roots 11 were they also lifted in connection with tree roots 12 from Zelkova? 13 A Some. 14 Q Is there anything unusual or different about 15 the way the roots of this particular species of tree 16 grows underground? a7 a ateiNo 18 Q Are there other Zelkova that are planted 18 in the area between a public sidewalk and a curb 20 within the Township of Montclair? 21 A Yes. 22 Q Have the roots of this type of tree lifted 23 sidewalks in that same location in other places other 24 than in front of 70 Oakwood? You told us you've seen 25 tree roots lift the sidewalk. TAYLOR & FRIEDBERG, LLC (973) 285-0411Page 28 1 Have they also been planted between the 7 sidewalk and curb in the township, Zelkova? 3 A Yes. 4 Q Have you observed any condition where a 5 Zelkova tree has roots that lifted up the sidewalk 6 such as on Oakwood Avenue? 7 A No. 8 @ Where else have you seen it? 9 A In other communities. I have not looked at any 10 other sidewalks -- lifting sidewalks. I have not 11. looked at other Zelkova that lifted sidewalks in 12 Montclair, 13 Q Mr. Schuckman, have you received -- prior to 14 getting a phone call from Mr. Mendez have you received 15 any other complaints from any other Montclair resident 16 within say a year prior to this phone call that tree 17. roots lifted up the sidewalk anywhere on Oakwood 18 Avenue? et A No. 20 Q Had you ever received that complaint anywhere 21 say within two or three blocks of Oakwood Avenue? 22. A I would have to look through my phone records. 23 Q Do you know when the last time was you had 24 done a walk-by or drive-by Oakwood Avenue prior to 25 July of 20087 TAYLOR & FRIEDBERG, LLC (973) 285-041110 a 12 13 14 15 16 17 18 13 20 21 22 23 24 25 Page 29 A None to my knowledge. Q Never, ever before? A Not a walk through. I may have done a windshield survey but not to my knowledge. Q Why is it that you just didn't get that street yet? A Yeah. Q What did you do during the five to 10 minutes that you were at the site? A Well, first thing I do is acknowledge that the sidewalk has been lifted, then I consider the condition of the tree, the health of the tree. Q What did you determine about the health of the tree? A Both trees were young, respectively in very good condition. Q Can you determine the age of the tree? A T can guesstimate. Q What is your guesstimate? A 12 to 15 years. Q Mr. Schuckman, when you did your inspection can you make a determination as to how long it would take for the tree root to push the sidewalk up in the condition you observed it to be in? A No. TAYLOR & FRIEDBERG, LLC (973) 285-041110 1 12 13 14 15 16 a7 18 19 20 aL 22 23 24 25 Q Based upon all your experience, your trainigg your masters, all these different times, do you have any opinion whatsoever as to how long it took the tree roots to get to the condition it was? A In this case it took several years. Q Is it something that happens on a regular rate or could it be it's just a little bit -- Based upon your observations can you give me an opinion from all of your experience, the Masters. all your training over how long a period of time the fact the tree root had lifted up the sidewalk would be visible to anyone walking there? A Two_years, three years. Q Mr. Schuckman, you told us that you prepared specs for the Township. Are you familiar with the rules and requlations of the Township concerning any responsibility on the part of say a homeowner with respect to the tree that abuts their property? A The trees that are in the Township's right-of-way are the property of the Township and maintenance of those trees are the responsibility of the Township or of community. Q Does the homeowner under the bylaws or whatever, or the rules and regulations of the township? TAYLOR & FRIEDBERG, LLC (973) 285-0411Page 31 1 MR. BARATZ: Ordinances. 2 BY MS. PLUCHINO: 3 Q Ordinances, Does the homeowner have any 4 responsibility with respect to notifying the Township 5 when a dangerous condition is posed? 6 MR. BARATZ: Object to the form of the 7 guestioen, but you can answer. a THE WITNESS: 1 don't know there's any 9 responsibility required to report a condition. 10 BY MS. PLUCHINO: 11 Q $0 it would then be the Township's 12 responsibility not only to maintain the tree but to 13 make sure no tree poses a hazard to anyone walking on 14 the sidewalk? 15 MR. BARATZ: Objection to the form of the 16 question, however you can answer. 17 THE WITNESS: The maintenance of the tree is 16 the maintenance of the tree. The sidewalk is not the 19 responsibility of the Township. 20 BY MS. PLUCHINO: 21 Q I guess I did misphrase my question. You told 22 us that when a tree root lifts a sidewalk it poses a 23. risk -- a safety risk; correct? 24 A The sidewalk poses the risk. 25 Q If the tree is the Township's responsibility i TAYLOR @ FRIEDBERG, LLC (973) 285-0411Page 32} 1 and the sidewalk you're telling me is the homeowner's 2 responsibility there has to be some kind of 3 communication between the Township and the homeowners; 4 correct? 5 MR. BARATZ: I object to the form of the 6 question. You can answer it. 7 THE WITNESS: The Township maintains the 8 trees. 9 BY MS. PLUCHINO: 10 Q My question is this, who, if anyone, hes the 11 responsibility to inspect to make sure that a tree 12 root is not pushing up a sidewalk that's the 13 Township's responsibility? 14 MR. BARATZ: Object to the form. The question 18 calls for a legal conclusion but you can answer it. 16 THE WITNESS: Township is not responsible to 17 inspect -- to my knowledge to inspect the sidewalk 18 tree issues. 19 BY MS. PLUCHINO: 20 Q So if sidewalks are being pushed up all over 21 the town by tree roots and people are tripping and 22 falling nobody really has responsibility for that? 23 MR. BARATZ: Objection to the form of the 24 question. It's not even a question. It's an 25 argument. Why don't you not answer that one? TAYLOR & FRIEDBERG, LLC (973) 285-0411Page 33 1 THE WITNESS: Okay. 2 BY MS. PLUCHINO: 3 Q We were talking about what you did within the 4 five to 10 minutes. You checked the health of the 5 tree, you checked the fact it was pushing up the 6 sidewalk, anything else that you did there that day? sf A No. 8 Q What was the next thing you did with regard to 9 the tree situation you saw in front of 70 Oakwood? 10 A I would have called the resident back and informed 11 them of the results of my inspection. 12 °Q Did you have notes of when that conversation 13 took place? 14 A I would have probably called them back the same 15 day. 16 Q Did you ever meet Mr. Mendez in person? 17 A Yes. I might have the date. The day of the 18 permit I believe is September. It was late in the 19 season. 20 Q Did you ever go back to 70 Oakwood on a later 21 occasion? 22 A Yes. 23 Q How many times in total were you there? 24 A Twice, to my knowledge, twice. 25 Q he time in July that we're talking about is TAYLOR & FRIEDBERG, LLC (973) 285-0411Page 34 1 the first time and then you were there some other 2 time? 3 A Yes. 4 Q And you have notes about that? 5 A I don't know that I do, but I am checking. 6 Q Well, take a minute and look. 7 A I revisited the site September 9th, 2009. I do 8 not have a note. I just have a note that I visited 9 the site. I do have a recollection. 10 MS. PLUCHINO: Can we get a copy of that as 11 well? 12 MR. BARATZ: Show Candy what it says. 13 THE WITNESS: It just says 70 Oakwood. 14 BY MS. PLUCHINO: 15 Q Let's go back to calling the resident back 16 which is the day you went there July @th. 17 Do you have a recollection of that phone 18 conversation? 19 A Only I would have informed the resident I 20 performed an inspection of the condition of the tree 21 and if I can answer any questions he had regarding the 22 sidewalk. 23 Q Did you ever have a conversation with the 24 resident to the extent that you told Mr. Mendez that 25 the Zelkova was the wrong type of tree to plant in TAYLOR & FRIEDBERG, LLC (973) 285-041110 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 35 front of that type of location? A No, I don't recall. I had a conversation with him about the tree but I don't recall saying that. Q Did you ever come to an opinion that the Zelkova was not the right type of tree to plant in that type of space? MR, BARATZ: Objection to the form. You can answer. THE WITNESS: No. BY MS. PLUCHINO: Q Did you make any recommendations to the homeowner following that inspection of July 8th, 2009? A I don't recall. Q Would it be within your normal course of business or your normal way you handled things to write down anywhere if you had made a recommendation to the homeowner what to do? A I usually don't write something like that down. I routinely tell them if they had a question what the policy is. Q What's the policy? A The resident is required to repair the sidewalk and inform them and I routinely do this, that once they've taken out the permit and once they've lifted the slab their contractor has to then call us for a TAYLOR & FRIEDBERG, LLC (973) 285-041110 1. 12 13 14 15 16 17 18 i9 20 21 22 23 24 25 second inspection. Q To your knowledge based upon the time you worked for the Township it is the homeowner's responsibility to repair the sidewalk? A Yes. Q In this situation based upon your inspection there's a sidewalk that needed to be repaired; correct? A Yes. Q And that responsibility to repair the sidewalk is no different if the sidewalk is in need of repair because you have a tree root or crack or anything else? A Correct. Q Did you ever speak to the wife -- Mr. Mendez's wife? A I don't recall. Q When you made this observation the slab was lifted very high, did you also inform Frank Leslie about the condition that you observed? A No. Q Did you report this condition to any place else other than writing the notes that we have here? A No. Q Was there a reason why you didn't report it to Page 36 TAYLOR & FRIEDBERG, LLC (973) 285-041110 i 12 13 14 15 16 17 1g 19 20 21 22 23 24 Page 37 Prank Leslie? Isn't that his job as the code enforcement officer? A The homeowner was proactive, already started procedures to get it repaired so I was not reporting an unknown —- Q The homeowner was proactive, what do you mean? A He called me and wanted me to know the sidewalk was lifted and he wanted me to look at the trees. Q When you spoke to Mr. Mendez on the phone did he indicate to you that he already had taken any steps to repair the sidewalk or was he waiting for? A I believe this was the initial inspection. Q At the end of your conversation did you tell Mr. Mendez he should report back to you at any time? A I informed him once he had taken the permit out and he lifted the slabs that we'd come out and have to do a secondary inspection and determine if there was anything we could do. Q And, to your knowledge, did Mr. Mendez take out a permit? A Yes. Q I'll show you what's previously been marked as P-4 at a deposition held back in October. Do you recognize that document? TAYLOR & FRIEDBERG, LLC (973) 285-0411Page 38 1 Q What is it? 2 A Application for sidewalk permit. 3 Q Po you see those applications when they come 4 in? | 5 A No. 6 Q Other than seeing this particular permit now 7 at the deposition or in order to prepare yourself, did 8 you see this application any time back in 2009? 9 A I may have seen it the day I did the inspection if 10 the slabs were up. 1 Q And for what reason would you want to look at 12 the permit? 13. A To make sure they had a permit. Some people lift 14 up the sidewalks and then call us and they don't have 15 the permit. 16 Q You were going to send out the code 17 enforcement guy? 18 A Then we stop the job, yeah. 19 Q Are you familiar with Veech Construction 20 Corporation? 21 A No. 22 Q Now, did you go back te 70 Oakwood Avenue 23 after the time -- 24 A Yes. 25 Q What date wes that? TAYLOR & FRIEDBERG, LLC (973) 285-0411Page 39 w A It was September 9th, 2009 which would have been 2 after the permit was issued. 3 Q You spoke to him on July 8th; correct? 4 A Yes. 5 Q The permit is September one. Does it 6 generally take two months to get a permit in 7 Montclair? 8 MR. BARATZ: Objection to the form. It's an 9 application for a permit. 10 BY MS, PLUCHINO: a1 Q Was a permit issued? 12 A This is basically the permit, yeah. 13 Q When it indicates at the top September one and 14 a permit number afterwards 2801, does this indicate to 15 you that the date the permit was issued, or the day 16 the person made an application for the permit? 17 A The day they filled out the applicetion. 18 Q Who writes in the permit number? 19 A I don't know. 20 Q What date -- you said you went back September 21 9th? 22 A Yes. 23 Q For what reason did you go on September 9th? 24 A To my best recollection the sidewalk slab had been 25 xemoved and either the resident called me, I am not pe TAYLOR & #RIEDBERG, LLC (973) 285-041110 a1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 40 sure, to come and re-do the inspection to determine if any action could be taken on this particular project. Q Are you looking to see if there's a phone call? A But I do recall being on site with the resident and, you know, my shade tree foreman. Q Who is the shade tree foreman? A You mean the working foreman, His name is Dan Ferraro. Q Is he still employed by the town? A Yes. Q If you look at the bottom of the inspection report there's another name there. Do you know whose name that is, Newcom or something? A Newcom, that would be Joe Newcom. It's one of the assistant engineers of the Township. Q Is there anything -~ any written record aside from that one little line there that was generated as a result of your September 9th visit? A No. Q As we sit here today do you have a recollection of that visit? A Yes. Q Tell me what you recall. TAYLOR & FRIEDBERG, LLC (973) 285-0411Page 41 le A The slabs were removed exposing the roots. The 2 roots were still not exposed adequately for me to make 3 a clear determination of what action, if any, would be 4 taken so I believe either myself or with the foreman 5 -- working foreman we excavated more to determine 6 whether or not we could cut the roots at all or if we 7 were going to have to remove the tree. I believe the 8 homeowner was present. He was adamant he did not want 9 the tree removed and he wanted it preserved at all 10 costs. a. Q Did he say why? ! 12 A I think he liked the tree. You either love them 13 or hate them. Based upon his request for tree 14 preservation I instructed the working foreman to do a 15 minimal amount of work to reduce the volume of roots. } 16 Q Is that a determination you made of the action 17 needed to be taken? 18 A Yes. 19 Q Did you make a determination that the tree 20 needed to be removed? 21 A It was not removed. It was cut back. We removed 22 what we could. There are different kinds of roots, 23 what we call buttress roots which keep the tree 24 standing. There are additional smaller roots which 25 can also be issues and they don't support the trees Ce nIEnENERanE TAYLOR & PRIEDBERG, LLC (973) 285-0411Page 42 1 being erected. They support the tree's nutrition. 2 Those can be removed without detriment. Large 3 buttress roots cannot. As a rule we do not remove 4 large buttress roots. 5 Q Did you determine based upon your inspection 6 that day what type of root it was that was causing the 7 sidewalk to be lifted? 8 A The sidewalk was being lifted by large buttress 9 roots. 10 @ Did you not just say that large buttress roots 11 are the ones that are holding the tree erect? 12 A Correct. 13 Q And they cannot be removed? 14 A Correct. 15 Q So based upon that determination what, if 16 anything, was your recommendation as what to do here? 17 A We did a very minor reduction of the top of the 18 root, For lack of a better term it's called shaving. 19 Q Did you determine whether or not that minor 20 shaving would then, when the sidewalk was put back in, a create a level sidewalk? Do you understand what I 22 mean? It may have been jumbled. 23 When you made the determination you would only 24 do minor shaving, what was that based on? 25 A The request for preservation of the tree by the TAYLOR & FRIEDBERG, LLC (973) 285-0411won Se ea Haw 12 13 14 15 16 17 18 19 20 21 22 23 24 25 resident and the need to repair the sidewalk. Q Apart from the homeowner having an opinion here when you did the inspection when the sidewalk was excavated, in your opinion did you determine it would be a better decision to remove the tree entirely in order to preserve the integrity of the sidewalk and make it safe for people to walk? MR. BARATZ: Objection to the form of the question. A better decision. Note my objection. BY MS. PLUCHINO: © Did you have a opinion as to whether or not the tree should be removed -- A I will recommend options to the resident. ° What option did you recommend? A He could curve the sidewalk, he could ramp the sidewalk or we could cut a little which is what we ended up doing in the end which was minor shaving with no guarantee that it wouldn't occur again. Q Was it ever your opinion, not influenced by the homeowner, your opinion that the tree should be removed entirely? MR. BARATZ: Objection to the form of the question. You can answer it. THE WITNESS: I don't recall. We don't remove healthy trees as a rule. You can curve the sidewalk TAYLOR & FRIEDBERG, LLC (973) 285-0411 Page 4310 a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 44 to avoid the root or ramp the sidewalk. BY MS. PLUCHINO: Q Mr. Mendez didn't like that option? A Most people don't like that option. Q It's not aesthetically as nice? A Yeah. Q When you say ramp the sidewalk -- A A little bridge. It goes up. It's still meets the code, a wheelchair can still progress. It's not a level surface any longer. It's now a bridge surface. Q I£ the ramp option was picked would you still have to do anything to the root? A Not at that time. Q When you talk about a minor shaving, who does the shaving? A Shade tree crew. Q Was the minor shaving done? A Yes. Q When was that done? A I don't know. I'm here one day 2 week. I'ma consultant. I can't tell you when he did the work. Q Is it your responsibility as the town consulting arborist to say how much of the root needs to be shaved or does someone else make the determination? TAYLOR & FRIEDBERG, LLC (973) 285-0411Page 45 1 A Hither the foreman -- working foreman, they both 2 have enough experience to know. 3 Q hat would be the guy that came, Dan Ferraro? 4A Yes. 5 Q As we sit here today do you know how much 6 shaving was done? 7 A I don't know. a Q Does he have permission or does he consult 9 with you on how much to remove? 10 A We discuss it. 11 Q What did you discuss? 12 A Remove as little as possible. 13 Q Was there a goal in mind as to how much needed 14 to be removed to make the sidewalk level? 15 MR. BARATZ: Note my continuing objection to 16 this line of the questioning. I don't understand -- ae MS. PLUCHINO: You don't have to understand. 18 BY MS. PLUCHINO: ieee O° Based upon your knowledge of working in the 20 township, in general were records kept in the regular 21 course of business as to when roots are shaved how 22 much is done, when it's done, who does it, that kind 23 of thing? 24 A We have to check with the foreman. I am not there 25 for the daily working operations. TAYLOR & FRIEDBERG, LLC (973) 285-0411Page 46 1 Q Have you ever seen such records? 2 A No. 3 Q Did you ever go back out to the site again 4 after September 9th? 5 A 1 believe I nad gone back after the sidewalk was 6 replaced. 7 Q For what reason did you go back after the 8 sidewalk was replaced? 9 A Make sure the contractor had not done any 10 additional damage to the tree. qa Q What did you determine? 12 A Everything was fine. 13 Q When did you go? 14 A I don't know that I can tell you exactly, but I 15 will give it a shot. Around the week of September 16 23rd I have just checked 70 Oakwood, another note of 17 Buckingham which is not relevant to this case. Those 18 would have been sidewalks. I do remember a sidewalk ae issue on Buckingham that same time. 20 Q Mr. Schuckman, when you go around and do your 21 walk-bys or drive-bys or whatever, do you have the 22 authority to issue any type of citation to homeowners 23 if you see a dangerous condition whether it be for a 24 tree or something else? 25 A As a New Jersey certified tree expert I have a TAYLOR & FRIEDBERG, LLC (973) 285-0411Page 47 1 responsibility if I observe a condition that presents 2 a public safety hazard I have to report it. I 3 routinely do so to owners of private trees. If I see 4 anything that is any concern to me we take action 5 immediately. 6 Q What do you include in your classification of 7 a condition that creates @ public hazard -- safety 8 hazard? 9 A A tree is cracked, trees uplift, are coming out of 10 the ground, trees in the wires that are sparking 11 things like that. 12 Q In this particular situation when you went to 13 inspect the tree in front of 70 Oakwood, apart from 14 seeing the roots -- the buttress roots were lifting 15 the sidewalk, did you make any other observations 16 about the roots on the other parts of the tree that 17 day? 18 A No. 1g Q Were the roots coming up on the other side 20 closer to the curb side as well or just on the 21 sidewalk side? 22 MR, BARATZ: Objection to the form. You can 23 answer it. 24 THE WITNESS: T don't recall. 25 BY MS. PLUCHINO: TAYLOR & FRIEDBERG, LLC (973) 285-041110 aL 12 13 14 15 16 17 18 19 20 ar 22 23 24 25 Page 48 Q At any time did you ever take any photographs? A No. Q When you went there, at any time ever, even when you spoke to Mr. Mendez on the phone, did you ever advise him to put any type of caution tape, any kind of barricade around the area? A No. Q At any time you were there did you ever see a barricade or caution tape there? A Yes. Q When was that? A Some time that summer. Q Did you ever discuss that with Mr. Mendez for any reason? A No. Q I'm going to show you, six, what was marked previously as Exhibit-1, 2 and 3 at an earlier deposition and ask you to take a look. Do you recognize anything in those photographs? A 1 recognize the front of the house, I recognize the sidewalk, that's the tree. Q When you went there the first time -- you're looking at, what's the number of that one? A PW3. TAYLOR & FRIEDBERG, LLC (973) 285-041110 a 12 13 14 15 16 17 1g 19 20 21 22 23 24 25 Page 49 Q P-3. Did the sidewalk look the way it appears } in that photograph? A Yes. @ Same with the other photograph, does the sidewalk look the same way when you went there? A Yes. CROSS-FXAMINATION BY MR. FORCING: Q When you went to do the initial inspection was the homeowner there? A I didn't knock on the door. I don't know. Q Did he come out? A I don't recall. Q But you did have conversations with him after that? A Yes. Q Did you ever tell him it was your determination that the uplifting was caused by the tree? A Yes. Q Do you know when you told him that? A No, There was no question the lifting of the sidewalk was due to the tree. There's no question. Q You told him that? A Yes. I think he was very aware. Q Again, after you went out there to determine TAYLOR & FRIEDBERG, LLC (973) 285-0411Page 50 1 that you didn't tell anybody here at the office about 2 that condition? 3 A No. TI nly report things that I observe that were 4 not previoubly reported. In this case -- this is 5 typically rputine. We get dozens of sidewalk issues 6 called every year. I don't need to report to code 7 enforcement because the resident has taken action. I 8 have to report violations. In this case technically 9 it's a violation but had the homeowner began the 10 process, yes. | a. Q What's the violation? 12 A Repair of the sidewalk is the responsibility of 13 the property owner. 14 MS. PLUCHINO: What ordinance are you 15 referring to? 16 THE WITNESS: I don't know the number off the 17 top of my head. 1s MR. BARATZ: I may have it here. Maintenance 19 of exterior 247-5. 20 MS. PLUCHINO: That's on the website? ai THE WITNESS: Yes. 4 22 MR. FORCINO: I have no other questions. 23 REDIRECT EXAMINATION BY MS. PLUCHINO: 24 Q Had Mr. Mendez not contacted you and you had 25 seen this on your own, would you have advised code | TAYLOR & FRIEDBERG, LLC (973) 285-0411Page 51} enforcement? A Bette MS. PLUCHINO: No further questions. (Whereupon Exhibit P-3 was received and marked for Identification by the Court Reporter.) (Witness excused.) (Whereupon the deposition was concluded at 11:34 a.m.) TAYLOR & FRIEDBERG, LLC (973) 285-041110 a. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATE I, MARIA LYNN BUTRICO, a Notary Public and Certified Court Reporter of the State of New Jersey, do hereby certify that prior to the commencement of the examination the witness was duly sworn by me to testify the truth, the whole truth and nothing but the truth. I DO FURTHER CERTIFY that the foregoing is a true and accurate transcript of the testimony as taken by and before me at the time, place and on the date hereinbefore set forth. I DO FURTHER CERTIFY that I am neither a relative nor employee nor attorney nor counsel of any of the parties to this action, and that I am neither a relative nor employee of such attorney or counsel, and that I am not financially interested in the action. Notary Publié of the State of New Jersey License No. X1I02045 TAYLOR & FRIEDBERG, LLC (973) 285-0411 Page 52