| Hann v Black |
| 2012 NY Slip Op 04610 [96 AD3d 1503] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| Richard Hann et al., Respondents, et al, Plaintiff, v Stephen R.Black et al., Appellants. |
—[*1] Faraci Lange, LLP, Rochester (Carol A. McKenna of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Ontario County (Frederick G. Reed, A.J.),entered December 22, 2010 in a personal injury action. The order granted the motion of plaintiffsRichard Hann and Rita Hann, struck the answer of defendants and granted Richard Hann andRita Hann partial summary judgment on the issue of liability.
It is hereby ordered that the order so appealed from is affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byRichard Hann (plaintiff) when the tractor trailer driven by him collided with a tractor trailerdriven 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 motionof 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 adeposition, 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 inOctober 2007 and that the accident occurred in late January 2007, and thus the decision of thedissent is based upon the well-established principle that a party may not be compelled to producea former employee for a deposition (see McGowan v Eastman, 271 NY 195, 198 [1936]).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 inopposition to the motion, nor indeed is that contention raised for the first time on appeal, whichin any event would be improper (see Ciesinski v Town of Aurora, 202 AD2d 984, 985[1994]).
We reject the dissent's position that the issue of control was raised by defense counsel duringthe proceedings. In opposition to plaintiffs' motion to strike the answer, defendants' attorneyraised the issue of control of Black as a basis for determining that J&R Schugel's failure toproduce him was not willful or contumacious. Defendants' attorney did not argue that J&RSchugel had no legal obligation to produce him for a supplemental deposition because it nolonger employed Black. Rather, J&R Schugel implicitly concedes its control over Black by [*2]virtue of its contention on appeal that it was ready and willing toproduce Black at a second deposition but was unable to locate him. Indeed, defendants' attorneyexpressly stated in his opposing affirmation that Black would be produced "directly before thetrial." Furthermore, contrary to the position taken by the dissent, we do not view therepresentation 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 thetranscript 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 ofrecord stated that he was working "on the defense of your case." Moreover, when the courtdenied 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 generally CPLR 5501 [a] [1]). Parties "to a civil dispute are free to chart their ownlitigation course" (Mitchell v New York Hosp., 61 NY2d 208, 214 [1984]), and "mayfashion the basis upon which a particular controversy will be resolved" (Cullen v Naples,31 NY2d 818, 820 [1972]). We see no reason to reach the issue, raised sua sponte by the dissent(see CB Richard Ellis, Buffalo, LLC vD.R. Watson Holdings, LLC, 60 AD3d 1409, 1410 [2009]), whether J&R Schugel hadcontrol over Black.
We thus turn to the merits of the contentions raised by the parties on appeal. "It is wellsettled that '[t]rial courts have broad discretion in supervising disclosure and, absent a clear abuseof that discretion, a trial court's exercise of such authority should not be disturbed' "(Carpenter v Browning-Ferris Indus., 307 AD2d 713, 715 [2003]). We have "repeatedlyheld that the striking of a pleading is appropriate only where there is a clear showing that thefailure to comply with discovery demands is willful, contumacious, or in bad faith" (Perry v Town of Geneva, 64 AD3d1225, 1226 [2009] [internal quotation marks omitted]). "Once a moving party establishesthat the failure to comply with a disclosure order was willful, contumacious or in bad faith, theburden shifts to the nonmoving party to offer a reasonable excuse" (WILJEFF, LLC v United Realty Mgt.Corp., 82 AD3d 1616, 1619 [2011]). Contrary to defendants' contention, plaintiffs metthat initial burden, "thereby shifting the burden to defendant[s] to offer a reasonable excuse" (Hill v Oberoi, 13 AD3d 1095,1096 [2004]). Here, the court's determination "[t]hat the conduct of [defendants] was willful andcontumacious could be inferred from their failure to comply" with an order to produce Black fora deposition, along with their protracted delay in providing a response to plaintiffs' demands forthe disclosure of photographs of the accident scene (Leone v Esposito, 299 AD2d 930,931 [2002], lv dismissed 99 NY2d 611 [2003]; see Kopin v Wal-Mart Stores,299 AD2d 937, 937-938 [2002]).
We further conclude that defendants failed to meet their burden of offering a reasonableexcuse for failing to comply with the court's order to produce Black for a deposition or to providethe photographs of the accident scene in a timely manner (see Hill, 13 AD3d at 1096).J&R Schugel contends that it could not comply with the order to produce Black because it wasunable to locate him. However, "[t]he fact that [a defendant's] whereabouts are unknown is nobar to plaintiffs' requested sanction" of striking defendants' answer (Reidel v Ryder TRS, Inc., 13 AD3d170, 171 [2004]), and in any event J&R Schugel "offered insufficient proof of a good faitheffort to locate" Black (Mason v MTAN.Y. City Tr., 38 AD3d 258 [2007]; see Reidel, 13 AD3d at 171).
Defendants contend for the first time on appeal that plaintiffs were not prejudiced bydefendants' conduct, and thus that contention is not properly before us (see Ciesinski, 202AD2d at 985). Finally, defendants' contention that the court based its determination onimpermissible credibility determinations is not properly before us because it is raised for the firsttime in defendants' reply brief (see generally Matter of State of New York v Zimmer[appeal No. 4], 63 AD3d 1563 [2009]; Turner v Canale, 15 AD3d 960, 961 [2005], lv denied 5NY3d 702 [2005]).[*3]
All concur except Centra and Carni, JJ., who dissent andvote to modify in accordance with the following memorandum.
Centra and Carni, JJ. (dissenting in part). We respectfully dissent in part inasmuch as wecannot agree with our colleagues that Supreme Court did not abuse its discretion in granting themotion 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 ofthe trucking company owned by defendant J&R Schugel Trucking, Inc. (J&R Schugel). Theaccident had occurred on January 26, 2007, and plaintiffs commenced this action on December19, 2008. Black was initially deposed on July 21, 2009 and testified that he was no longeremployed by J&R Schugel. Thus, plaintiffs were adequately informed well before trial that Blackwas no longer under the control of J&R Schugel (see Schneider v Melmarkets Inc., 289AD2d 470, 471 [2001]). It is well settled that a party may not be compelled to produce a formeremployee for a deposition (see McGowan v Eastman, 271 NY 195, 198 [1936]). Here,plaintiffs made no effort—except to compel J&R Schugel to produce a party over whom ithad no control—to conduct a further deposition of Black, although plaintiffs and J&RSchugel were equally apprised of his whereabouts by Black himself, at his first deposition(see Schneider, 289 AD2d 470).
Plaintiffs' misguided effort to compel J&R Schugel to produce Black led to a motion byplaintiffs for leave to renew a motion for partial summary judgment on negligence, based onBlack'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 depositionconcerning Defendants' January 6, 2010 Supplemental Response to Notice for Discovery andInspection." 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 muchfurther than simply requiring J&R Schugel to use its "best efforts" to produce Black (MSPartnership v Wal-Mart Stores, 273 AD2d 858, 858 [2000]). Contrary to the majority'sposition, J&R Schugel specifically raised its lack of control over Black when it opposedplaintiffs' motion. Indeed, we have no difficulty concluding that J&R Schugel's statement that"[i]t had no clue nor should it be charged with knowledge of [Black's] current whereabouts as heis merely an owner/operator of a truck on dispatch to [J&R] Schugel, not an employee undertheir control" more than adequately raises the issue. Additionally, counsel for J&R Schugelspecifically raised the issue at oral argument of plaintiffs' motion to strike defendants' answerwhen, in responding to the court's query whether Black was still employed by J&R Schugel,counsel stated, "He was never actually employed by them. He's an owner/operator of a truck. Sowe actually tried to find out from J&R Schugel if they knew where he was and he's not an actualemployee so that made it more difficult as well." Thus, the majority incorrectly asserts that it israised "sua sponte" herein. Moreover, even if the issue had not been raised in opposition toplaintiffs' motion, the fact of the matter is that the order of May 18, 2010 compelling J&RSchugel to produce a former employee—who was also a codefendant—wasunlawful in that the court was without power to issue such an order (see McGowan, 271NY at 198; Zappolo v Putnam Hosp. Ctr., 117 AD2d 597 [1986]; Holloway v ChaCha Laundry, 97 AD2d 385 [1983]; Sparacino v City of New York, 85 AD2d 688[1981]; Frankel v French & Polyclinic Med. School & Health Ctr., 70 AD2d 947 [1979]).
The majority also incorrectly concludes that the issue was not raised on appeal. In any event,such an error of law is reviewable " 'despite the fact that it is raised for the first time on appealinasmuch as [plaintiffs] could not have opposed that contention by factual showings or legalcountersteps before [the court]' " (Britt vBuffalo Mun. Hous. Auth., 48 AD3d 1181, 1182 [2008]; see Oram v Capone,206 AD2d 839, 840 [1994]). The lack of an employment relationship between J&R Schugel andBlack, and therefore the lack of control, is undisputed and apparent from the face of the record.Thus, the reality of [*4]the situation is that the majority hasconcluded that J&R Schugel's answer should be stricken and that plaintiffs are entitled to partialsummary judgment on liability because J&R Schugel failed to comply with an order that, at leastwith respect to J&R Schugel, the court had no power to issue (see McGowan, 271 NY at198).
The majority also concludes that J&R Schugel "implicitly concedes its control over Black byvirtue of its contention on appeal that it was ready and willing to produce Black at a seconddeposition but was unable to locate him." However, we are unable to conclude that a party's goodfaith attempts to comply with an unlawful order should be used thereafter as a sword to strikedown a patently meritorious contention regarding the unlawfulness of the order in the firstinstance. The majority further concludes that parties to a civil dispute are " 'free to chart theirown litigation course.' " We hardly view J&R Schugel as having been "free" to chart its ownlitigation course when it was restricted by an order that the majority recognizes was made in erroras a matter of law.
Although we acknowledge that Black and J&R Schugel Trucking were represented by thesame counsel, we surmise that such an arrangement was no doubt the product of a cost-savingdecision made by the insurance carrier rather than a calculated decision of J&R Schugel to sealits fate by linking itself to a former employee over whom it had no control. The majority fails toprovide any authority for the proposition that the answer of one defendant can be stricken basedon a codefendant's noncompliance with an order—which is precisely what the majority hasapproved here. Reidel v Ryder TRS,Inc. (13 AD3d 170, 171 [2004]), relied upon by the majority, involves the striking of theanswers of two defendants whose whereabouts were unknown—not the answer of acodefendant that had no control over the noncompliant party. Although plaintiffs were free to usecontempt proceedings or a warrant of commitment and arrest to secure Black's presence at thefurther deposition, they failed to pursue those remedies (see Mermelstein v Kalker, 294AD2d 413, 414 [2002]; Quintanilla v Harchack, 259 AD2d 681, 682 [1999]).
Moreover, in evaluating whether to strike the answer of one of two or more defendants, "[it]is incumbent upon the trial court to protect the rights of any innocent party whose cause of actionor defense would be unfairly impaired by the imposition of a CPLR 3126 penalty on another,contumacious party" (Quintanilla, 259 AD2d at 682). Indeed, cases in which a courtrefuses, even if only conditionally, to strike a codefendant's answer where the adverse impactwould fall most heavily upon the remaining defendant that is vicariously liable under Vehicle andTraffic Law § 388 are legion (see e.g. Mermelstein, 294 AD2d 413;Quintanilla, 259 AD2d at 682; Magee v City of New York, 242 AD2d 239[1997]; Gonzalez v National Car Rental, 178 AD2d 116 [1991]; Briley vMorriseau, 99 AD2d 524 [1984]; Di Giantomaso v Kreger Truck Renting Co., 34AD2d 964 [1970]; Rozakis v Tilo Co., 32 AD2d 930 [1969]; Rogonia vFerguson, 52 Misc 2d 298 [1966]).
An identical factual setting was presented in Mermelstein (294 AD2d 413), where theformer employee/driver refused to cooperate in defending the action against himself and hisformer employer, a codefendant. The Second Department concluded that Supreme Court erred ingranting plaintiff's motion to strike the answer of the former employee/driver and that the moreappropriate sanction was to preclude him from offering evidence on his own behalf at trial unlesshe appeared for an examination before trial no later than 30 days prior to trial (id. at 414).
Insofar as the photographs of the accident scene are concerned, after Black testified on July21, 2009 with respect to their existence and potential location, plaintiffs made a specific requestfor them on September 15, 2009 and they were produced less than four months later, on January6, 2010. The trial was scheduled for December 1, 2010. Thus, plaintiffs had possession of thephotographs for nearly a year before the trial date. It is also of no small significance to ouranalysis that plaintiffs never moved for or obtained an order compelling the production of the[*5]photographs. Although in February 2009 plaintiff servedboilerplate demands for the production of photographs, it was not until Black's examinationbefore trial in July 2009 that it was confirmed that he took photos at the accident scene. As noted,J&R Schugel produced those photos in their entirety within four months of plaintiffs' specificletter request therefor.
Additionally, although plaintiffs claim prejudice from the delay in producing the photos,Black was deposed on July 21, 2009 and plaintiffs did not make a written request for the specificphotos identified by Black until September 15, 2009. This was four days after plaintiffsinitially moved for partial summary judgment on the issue of negligence on September 11, 2009,and approximately two months after Black's deposition. Plaintiffs made no attempt to obtain anextension of the scheduling order, which contained a cut-off date for the filing of summaryjudgment motions. Further, plaintiffs claim that the photographs belied Black's depositiontestimony that, at the time of the accident, it was sunny and the road was dry. However, Blacktestified at his deposition that at the scene of the accident "[t]he road conditions changed from Iwould say from dry to at least three seconds before the accident to wet." Thus, it cannot be saidthat the availability of the photos at the time of plaintiffs' summary judgment motion would haveeliminated all issues of fact in plaintiffs' favor such that plaintiffs were substantively prejudicedby the delay in disclosure. Here, there has been complete, albeit belated, compliance withplaintiffs' demand for photographs.
CPLR 3126 provides that, when a party refuses to obey an order to disclose or fails todisclose information that the court finds ought to have been disclosed, "the court may make suchorders with regard to the failure or refusal as are just" (emphasis added). We concludethat, under the circumstances, it was unjust and an abuse of discretion for the court to invoke theextreme and drastic penalty of striking defendants' answer (see Greene v Mullen, 70 AD3d 996, 996-997 [2010]). The moreappropriate remedy with respect to the failure of Black to appear for a further deposition is topreclude Black from offering evidence on his own behalf at trial unless he appears for a furtherdeposition no later than 30 days prior to trial (see Mermelstein, 294 AD2d at 414). Themore appropriate remedy for J&R Schugel's delay in producing the photographs is to impose amonetary sanction. Plaintiffs have the photographs, and the matter should proceed to trial inaccordance with the paramount goal of resolving cases on their merits (see Mironer v City of New York, 79AD3d 1106, 1107 [2010]).
We therefore would modify the order by reinstating the answer and granting plaintiffs'motion to the extent of precluding Black from offering evidence on his own behalf at trial unlesshe appears for a further deposition no later than 30 days prior to trial and by directing that J&RSchugel pay plaintiffs the sum of $1,250 as a sanction for the delay in producing thephotographs. Present—Scudder, P.J., Smith, Centra, Carni and Martoche, JJ.