Merck, Sharp and Dohme v. Whitted

• Decision Date: 07 November 1973
• Citation: 77 Misc.2d 8,352 N.Y.S.2d 754
• Court: New York County Court
• Parties: MERCK, SHARP & DOHME, A Division of Merck & Co., Inc., Plaintiff, v. Annie WHITTED, Defendant.

Page 754

352 N.Y.S.2d 754

77 Misc.2d 8

MERCK, SHARP & DOHME, A Division of Merck & Co., Inc., Plaintiff, v. Annie WHITTED, Defendant.

Westchester County Court.

Nov. 7, 1973.

Corwin & Friedman, White Plains, for plaintiff.

Grant & Helfenstein, Brooklyn, Benjamin E. Gelerman, Brooklyn, of counsel, for defendant.

HAROLD L. WOOD, Judge.

Motion by plaintiff for an order striking defendant's answer and for entry of judgment because of defendant's failure and refusal to sign and return the transcript of her examination before trial.

Plaintiff has sought to impose the sanctions outlined in CPLR § 3126(3) for this conduct of the defendant. This Court has had occasion in the past to hold that a motion to strike an answer is not, in its opinion, the proper remedy for failure of a defendant to sign and return an examination before trial. (Navaho Freight Lines v. Supro Neon Corp., County Court, Westchester County, NYLJ December 5, 1972, p. 21, col. 6).

Counsel for the movant takes issue with the Court's position and in support thereof refers the Court to the cases of March v. Lee & Sons, Inc., 34 A.D.2d 985(12), 312 N.Y.S.2d 372 (2nd Dept., June 1970) and Dorset Caterers, Inc. v. Nassau & Suffolk Dining Car & Restaurant Assoc., Inc., 67 Misc.2d 687, 325 N.Y.S.2d 39 (Nassau County Dist. Court, October 12, 1971).

In Marsh, supra, the Supreme Court, Queens County, on motion, struck out defendant's answer because of his failure to execute his examination before trial. On Appeal the Appellate Division held merely that '(i)t was an improvident exercise of (the lower court's) discretion to strike appellant's answer, since the requested material was furnished prior to the hearing of the motion.' It would appear, then, that only the question of abuse of discretion was before the appellate court and its ruling was limited to that issue alone. No attack was made in the lower court as to the propriety of the remedy and, accordingly, that question was never reached by the appellate court.

In Dorset, supra, plaintiff moved to strike defendant's answer for failing and refusing to sign the transcript of his examination before trial. Defendant asserted, as its reasons for that position, that (1) many questions asked of it and answered by it were not in the record and (2) it was improper for the stenographer employed by plaintiff's counsel to take the testimony.

The Court held that defendant's refusal to sign was not the proper procedure to be followed by it. It set forth what defendant should do and gave it 20 days to comply with the Court's directions, failing which the motion to strike would be granted. Here again, the specific issue as to the regularity of the motion was not before the Court and not dealt with in its decision.

Weinstein-Korn-Miller in their treatise dealing with New York Civil Practice state, with reference to this problem (in vol. 3, par. 3116.08):

'Section 302 of the former Civil Practice Act provided for imposition of damages if a witness unreasonably refused to sign his deposition; where a party refused to sign, the court could also strike out his pleadings. Such penalties are not required under the CPLR (Abramowitz v. Voletsky, 47 Misc.2d 626, 262 N.Y.S.2d 991; Fields v. Johnson, NYLJ March 23, 1964, p. 13, col. 1 (answer may not be stricken because of witness' refusal to sign deposition); Duffy v. Lebrio, NYLJ April 2, 1964, p. 16, col. 6) CPLR 3124 and 3126 have no application because the deponent has disclosed information at his examination.

'Nevertheless, the court has power, pursuant to CPLR 2308(a) to hold a witness in contempt for refusing to sign his deposition (Dale Factors Corp. v. Jay Kay Metal Specialties Corp. 46 Misc.2d 392, 259 N.Y.S.2d 643).'

CPLR § 3116(a) states that '(i)f the witness fails to sign the deposition, the officer before whom the deposition was taken shall sign it. . . .'

Of course this presupposes that the officer was present during the entire examination for if he were not he obviously could not sign the deposition. But even if the officer were present during the entire examination, ...