Rosenberg v. Trachtman
| Decision Date | 21 March 1980 |
| Parties | Walter ROSENBERG v. Alan TRACHTMAN, Aragorn Specialties Corporation and Korvettes, Inc. |
| Court | New York Supreme Court |
Raymond P. Berberian, Astoria, for plaintiff.
Baer, Marks & Upham, New York City, for defendants.
This is a motion by defendants Trachtman and Aragorn Specialties Corp. (hereinafter Aragorn) to strike the complaint on the ground that plaintiff willfully failed to disclose information which was material and necessary to the defense of this action, or, in the alternative, directing that the issues to which the undisclosed information is relevant shall be deemed resolved for the purposes of the action in accordance with the claims of the defendants. (CPLR 3126, subd. (1), (3).)
This action arises from plaintiff's operation of a retail specialty shop in one of defendant Korvettes' local stores, pursuant to a written agreement between plaintiff and defendant Aragorn under a licensing agreement defendant Aragorn had with defendant Korvettes. Pursuant to the agreement, plaintiff was to deposit all gross receipts into certain cash registers in the store. Defendants were to receive ten percent of the gross receipts. On December 14, 1978, plaintiff was observed by defendants' security personnel taking the sum of $32.26 from a register, placing same in his pocket and leaving the store. Plaintiff was further observed withholding sales receipts from certain customers and subsequently voiding the sales made.
On December 15, 1978 plaintiff was confronted with this information and he admitted the theft. Plaintiff further signed a written confession admitting other thefts between April 1978 and December 1978 in the approximate amount of $5,000. Thereafter, his employment contract was terminated.
Plaintiff brings this action to recover the value of his inventory and fixtures, his security and the gross receipts of November and December, 1978.
Defendants' answer sets forth a separate and complete affirmative defense in the nature of a counterclaim. This counterclaim alleges that plaintiff breached his agreement by failing to deposit all of the gross receipts from the operation of his shop, and that as a result the defendants' losses therefrom far exceeded the plaintiff's alleged damages.
Plaintiff submitted to an examination before trial on October 9, 1979. During the examination, plaintiff was questioned with respect to his failure to deposit all the gross receipts pursuant to the contract. Plaintiff, on advice of his attorney, refused to answer any questions regarding his failure to deposit the gross receipts and any and all questions with respect to his alleged theft of moneys. Plaintiff's ground for refusal was the Fifth Amendment of the United States Constitution, that "the answer might tend to incriminate him."
The question before this court is whether plaintiff has a right to refuse to answer the questions posed on the grounds of the Fifth Amendment.
CPLR 3126 reads as follows:
"If any party, or a person who at the time a deposition is taken * * * refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed, the court may make such orders with regard to the failure or refusal as are just * * *."
Where failure to disclose is based upon the Fifth Amendment constitutional privilege against self-incrimination, the question of whether sanctions shall be imposed depends upon which party seeks to invoke the privilege. The sanctions of CPLR 3126 may not be invoked where the defendant uses his constitutional privilege against self-incrimination as a shield. On the other hand, where the plaintiff uses it as a sword by refusing to disclose information which may be relevant, the civil sanctions of CPLR 3126 may be invoked.
The leading case which supports this rule is Levine v. Bornstein, 13 Misc.2d 161, 174 N.Y.S.2d 574 (Sup.Ct., Kings County), affd. 7 A.D.2d 995, 183 N.Y.S.2d 868 (2d Dept., 1958), affd. 6 N.Y.2d 892, 190 N.Y.S.2d 702, 160 N.E.2d 921, in which plaintiff brought an action on a judgment. During his examination before trial, plaintiff refused to answer certain questions on the ground that his answers would incriminate him. As a result, the court dismissed the action. The Levine court went to great length discussing how carefully the court guards the constitutional privilege against self-incrimination. However, the court went on to say:
...
To continue reading
Request your trial