Barbato v. Tuosto

• Decision Date: 29 March 1963
• Citation: 238 N.Y.S.2d 1000,38 Misc.2d 823
• Parties: Joseph BARBATO and Gabriele Canzano, Plaintiffs, v. Ida TUOSTO, Grace M. Tuosto and Daniel M. Tuosto, Defendants.
• Court: New York Supreme Court

Page 1000

238 N.Y.S.2d 1000

38 Misc.2d 823

Joseph BARBATO and Gabriele Canzano, Plaintiffs, v. Ida TUOSTO, Grace M. Tuosto and Daniel M. Tuosto, Defendants.

Supreme Court, Special Term, Monroe County.

March 29, 1963.

Liebschutz, Sutton, DeLeeuw, Clark & Lawis, Rochester, for plaintiffs.

Peter C. Sulli, Sr., Rochester, for defendants Ida Tuosto and Grace M. Tuosto.

DANIEL E. MACKEN, Justice.

Upon an examination before trial, held pursuant to order of the Court, the defendants Ida and Grace M. Tuosto (defendant Daniel has not been served) refused to answer several material questions on the ground of self-incrimination and, on the same ground, refused to produce certain personal papers and records called for by the order. Upon the argument, it was conceded by plaintiffs that the complaint contains allegations of conduct by the defendants, proof of which might constitute a crime or crimes, and no claim is made that answers to the questions propounded and the documents sought to be produced might not incriminate or tend to incriminate the defendants. The question presented is whether the answer of a defendant in a civil action may be stricken for his refusal to answer material questions and produce personal records on the justified ground of self-incrimination. The relief is sought by the application of Section 299 of the Civil Practice Act or by the exercise of the Court's inherent power.

Plaintiffs urge that, while by appearing for the examination the defendants complied with a portion of Section 299 C.P.A., their failure to produce their records requires application of the section. The section requires that the failure to produce be 'wilful'. Webster defines 'wilful' as 'governed by will without regard to reason or without yielding to reason' which, put another way, would seem to say that to be 'wilful' an act must be unreasonable. It has been held that to be 'wilful' within the meaning of the section, the failure to comply must be contumacious. (Vastola v. Canariato, 8 A.D.2d 961, 190 N.Y.S.2d 496; Du Bois v. Iovinella, 15 A.D.2d 616, 222 N.Y.S.2d 460.) I do not believe that the lawful assertion of a constitutional privilege may be so characterized and conclude that Section 299 C.P.A. is not here applicable.

In the exercise of its inherent power, the Court may dismiss the complaint of a plaintiff who, at an examination before trial and on the ground of self-incrimination, refuses to answer questions calculated to establish a defense. (Levine v. Bornstein, 13 Misc.2d 161, 174 N.Y.S.2d 574, affd. 7 A.D.2d 995, 183 N.Y.S.2d 868, affd. 6 N.Y.2d 892, 190 N.Y.S.2d 702, 160 N.E.2d 921.) Prior to Levine, no reported case was found in this State in which the question arose by refusal of a plaintiff to testify on constitutional grounds although it was consistently held that a defendant's answer might not be stricken for such refusal to answer. (Southbridge Finishing Co. v. Golding, 208 Misc. 846, 143 N.Y.S.2d 911, affd. 2 A.D.2d 882, 157 N.Y.S.2d 898; Bradley v. O'Hare, 2 A.D.2d 436, 156 N.Y.S.2d 533.) Since Levine, a like conclusion has been reached in McKelvey v. Freeport Housing Authority, 29 Misc.2d 140, 220 N.Y.S.2d 628. In Levine the Justice at Special Term distinguished between refusal to answer by a plaintiff, who voluntarily sought relief from the Court, and by a defendant who was there involuntarily. I may say that I am not completely convinced of the validity of this distinction. Compelling one to forego a cause of action does not, to me, differ essentially from compelling one to relinquish a defense. In either event, one may be effectively deprived of his property. The right of a defendant to resist an unfounded claim is no greater than that of a plaintiff to prosecute a meritorious one. No lesser wrong results from preventing a plaintiff from recovering that which in law is...