Weinstein v. Gindi

• Decision Date: 16 February 2012
• Citation: 938 N.Y.S.2d 538,92 A.D.3d 526,2012 N.Y. Slip Op. 01175
• Parties: Eli WEINSTEIN, et al., Plaintiffs–Appellants, v. Michael GINDI, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01175

92 A.D.3d 526

938 N.Y.S.2d 538

Eli WEINSTEIN, et al., Plaintiffs–Appellants,

v.Michael GINDI, Defendant–Respondent.

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

Feb. 16, 2012.

The Law Offices of David Carlebach, Esq., New York (David Carlebach of counsel), for appellants.

Heller, Horowitz & Feit, P.C., New York (Martin Stein of counsel), for respondent.

GONZALEZ, P.J., FRIEDMAN, MOSKOWITZ, ACOSTA, RICHTER, JJ.

Judgment, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered October 29, 2009, in favor of defendant on his counterclaims and against plaintiff Eli Weinstein in the aggregate amount of $3,961,792.14, and dismissing the claims asserted by Weinstein, unanimously affirmed, without costs. Judgment, same court and J.H.O., entered June 2, 2010, dismissing the claims asserted by plaintiff Pine Projects LLC and bringing up for review an order, same court and J.H.O., entered June 2, 2010, which, inter alia, granted defendant's motion for summary judgment dismissing Pine Projects' complaint, unanimously reversed, on the law, without costs, the motion denied and Pine Projects' claims reinstated.

The motion court providently exercised its discretion in striking plaintiff Weinstein's pleading and dismissing his claims based on his willful refusal to appear for deposition in this action (CPLR 3126; Fish & Richardson, P.C. v. Schindler, 75 A.D.3d 219, 220, 901 N.Y.S.2d 598 [2010] ). Weinstein commenced the action in New York County and was ordered to appear for deposition by August 5, 2009. Depositions of parties to an action are generally held in the county where the action is pending; if a party demonstrates that conducting his deposition in that county would cause undue hardship, the Supreme Court in its exercise of discretion can order the deposition to be held elsewhere ( Yu Hui Chen v. Chen Li Zhi, 81 A.D.3d 818, 818, 916 N.Y.S.2d 525 [2011]; CPLR 3110).

Here, however, Weinstein was capable of coming to New York to be deposed without undue hardship. He simply refused to enter New York because a warrant for his arrest had been issued upon his contempt in an unrelated action. Thus, due to his self-imposed problems, Weinstein willfully disregarded the Court's order to appear in this State for deposition by August 5, 2009. The fact that Weinstein refused to enter New York because he feared being arrested does not establish a hardship warranting relocation of the deposition out of state, such as in Yu Hui Chen, 81 A.D.3d at 819, 916 N.Y.S.2d 525, where plaintiff established that traveling from China to the United States caused an undue hardship, and Wygocki v. Milford Plaza Hotel, 38 A.D.3d 237, 831 N.Y.S.2d 381 [2007], where the 76–year–old plaintiff, resident of Northern Ireland, submitted a sworn letter from her doctor identifying her many physical ailments and advising that traveling to New York could cause her further serious health problems.

The October 29, 2009 judgment awarding defendant damages on his counterclaims properly included an award of $1.5 million that was based on a loan defendant made to Weinstein. Defendant, who was the only witness at the inquest, testified that the loan was...