| State Farm Fire & Cas. v Parking Sys. Valet Serv. |
| 2011 NY Slip Op 05045 [85 AD3d 761] |
| June 7, 2011 |
| Appellate Division, Second Department |
| State Farm Fire and Casualty, as Subrogee of Joseph N. Misk,Appellant, v Parking Systems Valet Service, Respondent. |
—[*1] Stephen David Fink, Forest Hills, N.Y., for respondent.
In a subrogation action to recover insurance benefits paid to the plaintiff's insured for thetheft of personal property, the plaintiff appeals, as limited by its brief, from so much of an orderof the Supreme Court, Queens County (Schulman, J.), entered July 21, 2010, as, uponreargument, adhered to the determination in an order of the same court entered June 23, 2009,denying its postjudgment motion to compel nonparty Mark Baron and attorney Steven DavidFink to appear for an in camera review of records and depositions of both of them and for theimposition of a sanction upon the nonparty Mark Baron, and denied that branch of its motionwhich was for leave to renew its prior motion for the same relief.
Ordered that the order entered July 21, 2010, is modified, on the law, (1) by deleting theprovision thereof denying that branch of the plaintiff's motion which was for leave to renew thatbranch of its postjudgment motion which was to compel a new deposition of nonparty MarkBaron and substituting therefor a provision granting that branch of the plaintiff's motion whichwas for leave to renew, (2) by deleting the provision thereof, upon reargument, adhering to thedetermination in the order entered June 23, 2009, denying that branch of the plaintiff'spostjudgment motion which was to compel a new deposition of nonparty Mark Baron, andsubstituting therefor a provision, upon renewal and reargument, vacating the determination in theorder entered June 23, 2009, denying that branch of the plaintiff's postjudgment motion, andthereupon granting that branch of the plaintiff's postjudgment motion which was to compel a newdeposition of nonparty Mark Baron, to be supervised by the Supreme Court, Queens County, inaccordance with CPLR 3104 (a), and (3) by deleting the provision thereof, upon reargument,adhering to the determination in the order entered June 23, 2009, denying that branch of theplaintiff's postjudgment motion which was to impose a sanction upon nonparty Mark Baron, andsubstituting therefor a provision denying that branch of the plaintiff's motion, without prejudiceto the plaintiff's right to move, pursuant to Judiciary Law § 756, upon the proper service ofappropriate papers, to hold nonparty Mark Baron in civil contempt; as so modified, the orderentered July 21, 2010, is affirmed insofar as appealed from, without costs or disbursements.
On February 12, 2004, a parking attendant employed by Parking Systems Valet Service at arestaurant in Bayside parked a car driven to the restaurant by Joseph N. Misk. The car was aleased 2002 Mercedes Benz CL500. After dinner, when Misk attempted to retrieve the car, hewas informed by the attendant that both his car and his keys were missing. Misk filed a claimwith his insurer, State Farm [*2]Fire and Casualty (hereinafterState Farm), which paid out the sum of $78,283 for the loss. State Farm thereafter commencedthis subrogation action against Parking Systems Valet Service. Initially, however, State Farm hadnamed "Parking Systems, Inc." as the defendant; in an order dated September 13, 2006, theSupreme Court granted State Farm's motion for leave to file an amended summons andcomplaint, changing the name of the defendant to "Parking Systems Valet Service," noting that"the defendant does not dispute that it is the correct defendant."
The action proceeded to trial. Attorney Stephen David Fink appeared and defended the actionon behalf of Parking Systems Valet Service, and called a witness, Cesar Uraga, who testified thathe was an employee of an entity known as "Parking Systems," and that he was working on theevening that Misk's car could not be found. The Supreme Court (Geller, J.H.O.), found in favorof State Farm on its cause of action to recover the value of the missing car. On September 29,2008, a judgment was entered in State Farm's favor and against Parking Systems Valet Service inthe principal sum of $78,063. Parking Systems Valet Service, represented by Fink, appealed thatjudgment to this Court and, on May 26, 2009, this Court affirmed (see State Farm Fire & Cas. v Parking Sys.Valet Serv., 63 AD3d 1139 [2009]).
Thereafter, the plaintiff engaged in postjudgment collection efforts by serving an informationsubpoena duces tecum upon Mark Baron, the president of an entity known as "Parking Systems,"compelling him to appear for a postjudgment deposition, and to produce various documents forinspection. On February 13, 2009, Baron appeared for the deposition and was represented byFink. When asked whether Parking Systems Valet Service had a certificate of business or articlesof incorporation, Baron testified, "I don't recognize that defendant." He further testified that hewas not associated with Parking Systems Valet Service. When asked about Cesar Uraga, the trialwitness who testified that he was employed by "Parking Systems," Baron testified that, in 2004,Uraga was in fact employed by a company named "American Valet Service." When asked if"American Valet Service" had an agreement to provide valet services to the restaurant in Baysidepatronized by Misk on the night of the incident, Baron testified, "We have no relationship."When asked if he had ever heard of Parking System Valet Service, Baron stated: "No. No, I havenot." State Farm's attorney made inquiry of Fink at Baron's deposition as to whether there wereany employees of Parking Systems Valet Service. Fink replied, on the record, while referring toBaron, that "[t]his is the person who would have knowledge of anything to do with the corporatestructure of any entity that would have done valet parking or had agreements with thisrestaurant." Fink then stated, "I've always told you . . . Parking System ValetServices is nothing. It's just a name." Baron testified that he had heard of "ParkingSystems"—an entity apparently distinguishable from "Parking Systems Valet Service."When asked whether "Parking Systems" is an actual entity, Baron testified that it was not, andthat it was a name printed on jackets and signs "used to identify our business."
After Baron's deposition, State Farm moved to compel Baron and Fink "to appear for incamera review of records and deposition at the Courthouse in conjunction with sanctions uponBaron for $1,507.80." State Farm argued that Baron had lied during his deposition when hetestified that, among other things, he had never heard of Parking Systems Valet Service. Insupport of this contention, State Farm submitted affidavits Baron had purportedly filed in othercases, wherein he represented that he was either associated with or was a principal of "ParkingSystems Valet Service." In an order entered June 23, 2009, the Supreme Court denied StateFarm's motion. State Farm thereafter moved for leave to renew and reargue the motion, claiming,inter alia, that its attorney had mistakenly annexed the wrong deposition transcript, rather thanBaron's deposition transcript, to his affirmation in support of the original motion. The SupremeCourt denied that branch of the motion which was for leave to renew, holding that State Farmfailed to proffer a reasonable excuse for failing to submit those papers in support of the originalmotion. The Supreme Court granted that branch of State Farm's motion which was for leave toreargue, but, upon reargument, adhered to its original determination. State Farm appeals, and wemodify.
The Supreme Court erred in denying that branch of the plaintiff's motion which was for leaveto renew that branch of its prior motion which was to compel Baron to appear for a newdeposition, since State Farm's attorney offered a reasonable justification for failing to submit acopy of Baron's deposition transcript with the first motion (see CPLR 2221; Nwauwa v Mamos, 53 AD3d 646,649 [2008]; Cruz v Castanos, 10AD3d 277, 278 [2004]; Narducci v McRae, 298 AD2d 443, 443 [2002]). In hisaffirmation in support of the original motion, State Farm's attorney stated that Baron's depositiontranscript was annexed, and the attorney actually quoted from Baron's deposition, but a differentdeposition transcript was mistakenly annexed to the motion papers in the place where Baron'sdeposition transcript should have been affixed. Under these circumstances, leave to renew shouldhave been granted (see CPLR 2221 [e] [2], [3]; [*3]Nwauwa v Mamos, 53 AD3d at 649; Cruz v Castanos,10 AD3d at 278).
With respect to that branch of State Farm's initial motion which was to impose a sanctionagainst Baron, State Farm sought the sum of $1,507.80, representing the costs and attorneys' feesit incurred in conducting Baron's deposition. State Farm explained that this amount representedsix hours of attorneys' fees for an attorney to prepare for, travel to, and conduct Baron'sdeposition at a rate of $200 per hour, and $307.80 for the cost of printing the transcript of Baron'sdeposition. Although State Farm denominated this branch of its motion as a request for theimposition of sanctions, sanctions are not available against a nonparty (see Joan 2000, Ltd. v Deco Constr.Corp., 66 AD3d 841, 842 [2009]; Brock v Wagner, 283 AD2d 535 [2001];Saastomoinen v Pagano, 278 AD2d 218, 218-219 [2000]; see also 44A NY Jur2d, Disclosure § 429). 22 NYCRR 130-1.1 permits the imposition of sanctions onlyagainst "an attorney or a party to the litigation or against both" (22 NYCRR 130-1.1 [b])."Statutes authorizing an award of costs and sanctions are in derogation of common law and,therefore must be strictly construed" (Saastomoinen v Pagano, 278 AD2d at 218).
The costs and fees sought by State Farm are nevertheless recoverable against a nonparty suchas Baron as fines for civil contempt (see Judiciary Law § 773; Children's Vil. vGreenburgh Eleven Teachers' Union Fedn. of Teachers, Local 1532, AFT, AFL-CIO, 249AD2d 435 [1998]; see also CPLR 5210 [empowering the Supreme Court to punish acontempt of court in connection with a proceeding to enforce a money judgment]; CPLR 5251[the Supreme Court may hold "any person" in contempt for, among other things, "false swearingupon an examination" relating to the enforcement of a money judgment]). To avail itself of theopportunity to move for such relief, however, State Farm is required to comply with the noticeand service provisions of Judiciary Law § 756 (see Murrin v Murrin, 93 AD2d 858[1983]; Long Is. Trust Co. v Rosenberg, 82 AD2d 591 [1981]).
Here, the record reveals the existence of issues of fact as to whether Baron gave falsetestimony during his deposition. Of particular significance, State Farm submitted affidavitswhich it claimed Baron had filed with the Civil Court, Queens County, which appeared tocontradict his testimony that, among other things, he had never heard of Parking Systems ValetService. In a case captioned Parking Sys. Valet Serv. v Madame Tong's, LLC, doing businessas Madame Tong's (Civ Ct, Queens County, index No. 053516/08), Baron purportedly filedan affidavit dated May 12, 2008, in which he averred; "I am a principal of the plaintiff in thisaction." He purportedly filed a similar affidavit in a case captioned Parking Sys. Valet Serv. vJL E., LLC, doing business as Prime 103 (Civ Ct, Queens County, index No. 053515/08). InState Farm Mut. Auto. Ins. Co., as subrogee of Raffaele G. Faugno v Parking Sys. ValetServ. (Civ Ct, Queens County, index No. 118908/07), he purportedly filed an affidavit datedApril 25, 2008, stating: "I am associated with Parking Systems Valet Service." Accordingly,upon reargument, the Supreme Court should have denied that branch of State Farm's motionwhich was to impose a sanction upon Baron, albeit without prejudice to State Farm's right tomove, upon proper service of appropriate papers, pursuant to Judiciary Law § 756, to holdBaron in civil contempt in accordance with CPLR 5210 (see Coyle v Coyle, 63 AD3d 657 [2009]; Automated Waste Disposal, Inc. vMid-Hudson Waste, Inc., 50 AD3d 1073 [2008]; Chamberlain v Chamberlain, 24 AD3d 589 [2005]).
With respect to that branch of State Farm's initial motion which was to compel both Baronand Fink to appear for depositions and an in camera review of records, we agree with theSupreme Court that, at this juncture, an in camera review of records would have been overlybroad and burdensome. We also agree that the deposition of Fink, an attorney, is unwarrantedhere. However, State Farm should have been granted leave to depose Baron again and makeadditional requests for the production of documents (see CPLR 5224 [f]). Although incamera proceedings are not warranted at this time, under the circumstances presented here, thenew deposition of Baron must be supervised in accordance with CPLR 3104 (a). Prudenti, P.J.,Angiolillo, Florio and Cohen, JJ., concur.