Hann v. Black

• Decision Date: 08 June 2012
• Citation: 2012 N.Y. Slip Op. 04610,96 A.D.3d 1503,946 N.Y.S.2d 722
• Court: New York Supreme Court — Appellate Division
• Parties: Richard HANN, Rita Hann, Plaintiffs–Respondents, et al., Plaintiff, v. Stephen R. BLACK and J & R Schugel Trucking, Inc., Defendants–Appellants.

96 A.D.3d 1503

946 N.Y.S.2d 722

2012 N.Y. Slip Op. 04610

Richard HANN, Rita Hann, Plaintiffs–Respondents, et al., Plaintiff,

v.Stephen R. BLACK and J & R Schugel Trucking, Inc., Defendants–Appellants.

Supreme Court, Appellate Division, Fourth Department, New York.

June 8, 2012.

Russo, Keane & Toner, LLP, New York City (Naomi M. Taub of Counsel), for Defendants–Appellants.

Faraci Lange, LLP, Rochester (Carol A. McKenna of Counsel), for Plaintiffs–Respondents.

PRESENT: SCUDDER, P.J., SMITH, CENTRA, CARNI, and MARTOCHE, JJ.

MEMORANDUM:

Plaintiffs commenced this action seeking damages for injuries sustained by Richard Hann (plaintiff) when the tractor trailer driven by him collided with a tractor trailer driven by defendant Stephen R. Black and owned by defendant J & R Schugel Trucking, Inc. (J & R Schugel). Defendants contend on appeal that Supreme Court erred in granting the motion of plaintiffs-respondents (plaintiffs) to strike defendants' answer pursuant to CPLR 3126(3) based, inter alia, on their failure to comply with a prior order directing Black to be produced for a deposition, and for partial summary judgment on liability. We reject that contention.

We are compelled to note at the outset that Black left the employment of J & R Schugel in October 2007 and that the accident occurred in late January 2007, and thus the decision of the dissent is based upon the well-established principle that a party may not be compelled to produce a former employee for a deposition ( see McGowan v. Eastman, 271 N.Y. 195, 198, 2 N.E.2d 625). We of course acknowledge the validity of that principle. We do not rely upon it, however, because defendants, who were represented by the same counsel, raised no such contention in opposition to the motion, nor indeed is that contention raised for the first time on appeal, which in any event would be improper ( see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745).

We reject the dissent's position that the issue of control was raised by defense counsel during the proceedings. In opposition to plaintiffs' motion to strike the answer, defendants' attorney raised the issue of control of Black as a basis for determining that J & R Schugel's failure to produce him was not willful or contumacious. Defendants' attorney did not argue that J & R Schugel had no legal obligation to produce him for a supplemental deposition because it no longer employed Black. Rather, J & R Schugel implicitly concedes its control over Black by virtue of its contention on appeal that it was ready and willing to produce Black at a second deposition but was unable to locate him. Indeed, defendants' attorney expressly stated in his opposing affirmation that Black would be produced “directly before the trial.” Furthermore, contrary to the position taken by the dissent, we do not view the representation of Black and J & R Schugel by the same counsel as an arrangement of convenience. At the time of his original deposition, Black was not employed by J & R Schugel, yet the transcript of that deposition establishes that there was one attorney of record for both defendants. In a letter to Black, dated after the court had ordered a supplemental deposition, the attorney of record stated that he was working “on the defense of your case.” Moreover, when the court denied plaintiffs' renewed motion for summary judgment, it also ordered that “ [d]efendants shall produce Stephen R. Black” for a supplemental deposition (emphasis added), and we note that J & R Schugel did not appeal from that part of the order ( see generallyCPLR 5501[a][1] ). Parties “to a civil dispute are free to chart their own litigation course” ( Mitchell v. New York Hosp., 61 N.Y.2d 208, 214, 473 N.Y.S.2d 148, 461 N.E.2d 285), and “may fashion the basis upon which a particular controversy will be resolved” ( Cullen v. Naples, 31 N.Y.2d 818, 820, 339 N.Y.S.2d 464, 291 N.E.2d 587). We see no reason to reach the issue, raised sua sponte by the dissent ( see CB Richard Ellis, Buffalo, LLC v. D.R. Watson Holdings, LLC, 60 A.D.3d 1409, 1410, 875 N.Y.S.2d 380), whether J & R Schugel had control over Black.

We thus turn to the merits of the contentions raised by the parties on appeal. “It is well settled that ‘[t]rial courts have broad discretion in supervising disclosure and, absent a clear abuse of that discretion, a trial court's exercise of such authority should not be disturbed’ ” ( Carpenter v. Browning–Ferris Indus., 307 A.D.2d 713, 715, 763 N.Y.S.2d 871). We have “repeatedly held that the striking of a pleading is appropriate only where there is a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith” ( Perry v. Town of Geneva, 64 A.D.3d 1225, 1226, 882 N.Y.S.2d 626 [internal quotation marks omitted] ). “Once a moving party establishes that the failure to comply with a disclosure order was willful, contumacious or in bad faith, the burden shifts to the nonmoving party to offer a reasonable excuse” ( WILJEFF, LLC v. United Realty Mgt. Corp., 82 A.D.3d 1616, 1619, 920 N.Y.S.2d 495). Contrary to defendants' contention, plaintiffs met that initial burden, “ thereby shifting the burden to defendant[s] to offer a reasonable excuse” ( Hill v. Oberoi, 13 A.D.3d 1095, 1096, 786 N.Y.S.2d 765). Here, the court's determination “[t]hat the conduct of [defendants] was willful and contumacious could be inferred from their failure to comply” with an order to produce Black for a deposition, along with their protracted delay in providing a response to plaintiffs' demands for the disclosure of photographs of the accident scene ( Leone v. Esposito, 299 A.D.2d 930, 931, 749 N.Y.S.2d 924,lv. dismissed99 N.Y.2d 611, 757 N.Y.S.2d 821, 787 N.E.2d 1167;see Kopin v. Wal–Mart Stores, 299 A.D.2d 937, 937–938, 750 N.Y.S.2d 379).

We further conclude that defendants failed to meet their burden of offering a reasonable excuse for failing to comply with the court's order to produce Black for a deposition or to provide the photographs of the accident scene in a timely manner ( see Hill, 13 A.D.3d at 1096, 786 N.Y.S.2d 765). J & R Schugel contends that it could not comply with the order to produce Black because it was unable to locate him. However, “[t]he fact that [a defendant's] whereabouts are unknown is no bar to plaintiffs' requested sanction” of striking defendants' answer ( Reidel v. Ryder TRS, Inc., 13 A.D.3d 170, 171, 786 N.Y.S.2d 487), and in any event J & R Schugel “offered insufficient proof of a good faith effort to locate” Black ( Mason v. MTA N.Y. City Tr., 38 A.D.3d 258, 832 N.Y.S.2d 153;see Reidel, 13 A.D.3d at 171, 786 N.Y.S.2d 487).

Defendants contend for the first time on appeal that plaintiffs were not prejudiced by defendants' conduct, and thus that contention is not properly before us ( see Ciesinski, 202 A.D.2d at 985, 609 N.Y.S.2d 745). Finally, defendants' contention that the court based its determination on impermissible credibility determinationsis not properly before us because it is raised for the first time in defendants' reply brief ( see generally Matter of State of New York v. Zimmer, [Appeal No. 4], 63 A.D.3d 1563, 880 N.Y.S.2d 813;Turner v. Canale, 15 A.D.3d 960, 961, 790 N.Y.S.2d 347,lv. denied5 N.Y.3d 702, 799 N.Y.S.2d 773, 832 N.E.2d 1189).

It is hereby ORDERED that the order so appealed from is affirmed without costs.

All concur except CENTRA and CARNI, JJ., who dissent and vote to modify in accordance with the following Memorandum:

We respectfully dissent in part inasmuch as we cannot agree with our colleagues that Supreme Court did not abuse its discretion in granting the motion of plaintiffs-respondents (plaintiffs) to strike defendants' answer pursuant to CPLR 3126(3) and for partial summary judgment on liability.

Initially, we note that, in October 2007, defendant Stephen R. Black left the employment of the trucking company owned by defendant J & R Schugel Trucking, Inc. (J & R Schugel). The accident had occurred on January 26, 2007, and plaintiffs commenced this action on December 19, 2008. Black was initially deposed on July 21, 2009 and testified that he was no longer employed by J & R Schugel. Thus, plaintiffs were adequately informed well before trial that Black was no longer under the control of J & R Schugel ( see Schneider v. Melmarkets Inc., 289 A.D.2d 470, 471, 735 N.Y.S.2d 601). It is well settled that a party may not be compelled to produce a former employee for a deposition ( see McGowan v. Eastman, 271 N.Y. 195, 198, 2 N.E.2d 625). Here, plaintiffs made no effort—except to compel J & R Schugel to produce a party over whom it had no control—to conduct a further deposition of Black, although plaintiffs and J & R Schugel were equally apprised of his whereabouts by Black himself, at his first deposition ( see Schneider, 289 A.D.2d 470, 735 N.Y.S.2d 601).

Plaintiffs' misguided effort to compel J & R Schugel to produce Black led to a motion by plaintiffs for leave to renew a motion for partial summary judgment on negligence, based on Black's original deposition testimony. That motion, as well as a motion by the third plaintiff, resulted in an order signed on May 18, 2010, which denied plaintiffs' motions and provided that “[d]efendants shall produce Stephen R. Black on the earliest possible date for a further deposition concerning Defendants' January 6, 2010 Supplemental Response to Notice for Discovery and Inspection.” That order was patently inappropriate on its face in that it required one defendant, J & R Schugel, to produce a codefendant over whom it had no control. The order went much further than simply requiring J & R Schugel to use its “best efforts” to produce Black ( MS Partnership v. Wal–Mart Stores, 273 A.D.2d 858, 858, 709 N.Y.S.2d 290). Contrary to the majority's position, J & R Schugel specifically raised its lack of control over Black when it opposed plaintiffs' motion. Indeed, we have no difficulty concluding that J & R Schugel's statement...