DFB Sales v. Captains Neck Developmentt
Justice Thomas Feinman
Defendant moved to strike plaintiff's complaint for its alleged discovery misconduct. Alternatively, defendant sought to compel non-party witness, Kalda, to appear to complete her deposition in this action sounding in breach of contract. Defendant counterclaimed that plaintiff breach the parties agreement, seeking damages. Defendant served a subpoena on Kalda, but after 90 minutes of the deposition, plaintiff's counsel, who was not appearing for Kalda, announced he was terminating the deposition and instructed Kalda she was free to leave. The court stated the Uniform Rules for the New York State Trial Courts provided that a direction not to answer would be accompanied by a clear and succinct statement of the basis for such request. It found defendant's subpoena was proper, thus plaintiff's attorney's conduct—his deliberate instruction to Kalda, not to answer any further questions and directing her to leave—was willful and contumacious. The court noted plaintiff's counsel failed to offer a reasonable excuse for failing to produce requested discovery, thus sanctioned him $500 payable to defendant's counsel, and $250 to the Lawyers' Fund for Client Protection, directing Kalda to appear for another deposition.