Fuchs & Bergh, Inc. v Lance Enters., Inc.
Annotate this CaseDecided on February 22, 2006
Supreme Court, Suffolk County
Fuchs & Bergh, Inc., d/b/a Little Switzerland Dolls, LILY BERGH and JOHN BERGH, Plaintiffs,
against
Lance Enterprises, Inc., d/b/a Larry Ancewicz and LARRY'S FUEL, INC., d/b/a Larry's Fuel, Defendants.
6606-00
Attorney for Plaintiff
Jeffrey A. Sunshine, Esq.
5 Dakota Drive, Suite 202
Lake Success, NY 11042
Attorneys for defendant
Faust Goetz Schenker & Blee, LLP
Two Rector Street
New York, NY 10006
Denise F. Molia, J.
In the matter at bar, both the plaintiff and defendant maintain that they have each consulted with and/or retained Irving Chais to offer expert testimony at the trial of this action. The instant matter came on before the Court on February 8, 2006 for a hearing to determine [*2]whether Irving Chais should be precluded from offering expert testimony at trial.
The underlying case concerns damage to several "Little Switzerland" dolls allegedly resulting from a flood at plaintiff's place of business. The plaintiff has noticed an expert witness, Irving Chais, to offer testimony at trial as to the proper maintenance, preservation, storage and safeguarding of antique doll collections. The defendant seeks to preclude Chais from testifying, maintaining that representatives of the defendant have previously met with him to discuss the case and to retain him as the defendant's expert.
As its first witness the plaintiff called the proposed expert, Irving Chais. Mr. Chais testified that he has been in the business of purchasing, selling and appraising antique dolls since 1946. He is currently the president of New York Doll Hospital, which was established in 1900 and is located on Lexington Avenue in Manhattan. The witness further testified that in or about November, 2005 he was contacted by the plaintiff, Fuchs & Bergh, Inc., doing business under the trade name Little Switzerland Dolls, for the purpose of viewing dolls that had been damaged in plaintiff's basement and rendering an opinion as to the quality and condition of such dolls. The witness provided such services in or about November 2005, and was paid a fee by plaintiff for his efforts. Chais stated that he did not have a conversation with either the defendant or any insurance company about this matter.
On cross examination Chais reiterated that prior to his being retained by the plaintiff, he had not met with, or had any discussions about the matter with anyone other than the plaintiff. He denied have seen photos of the dolls provided by the defendant and maintained that he never spoke to a gentleman named Samuel Spirgel. He also could not recall speaking with a woman named Maija Heffernon in December, 2005, although he did recall speaking with her in January 2006 with regard to his having viewed the subject dolls at the plaintiff's place of business.
At the conclusion of Chais's testimony, the plaintiff rested.
The first witness called by the defendant was Samuel Spirgel, currently an associate attorney with the firm of Wilson, Elser, Moskowitz, Edelman & Dicker. The witness testified that during 2004 he was employed as an associate attorney with the law firm representing the defendant in this matter and had worked on the instant litigation file. Mr. Spirgel was given the responsibility of retaining an expert to render an opinion of the quality and condition of the subject dolls. After viewing a television program on rare dolls and researching the New York Doll Hospital, the witness testified that he personally spoke to, and subsequently met with Mr. Chais, at the New York Doll Hospital in July 2004. He described the hospital as being located on Lexington Avenue on the second floor of a building near Bloomingdale's, where he had to be buzzed in for both entry into the building as well as onto the second floor office at the top of the stairs.
Spirgel testified that he met with Chais for one hour, during which he showed photographs to Chais and also took notes on their conversation. The notes, which were written on a manila file folder were introduced into evidence as Defendant's Exhibit A. The witness [*3]further testified that he was able to solicit an opinion from Chais that the dolls in the photograph had not been properly protected in their location. Spirgel stated that he advised Chais that the Faust law firm would retain him as an expert witness, and would pay him a fee of $1,000.00 plus travel expenses to appear at the trial. No statement was offered on how payment was to be made. Spirgel concluded his direct testimony by stating that upon his return to the office, he prepared an expert disclosure document, dated July 29, 2004, inserting New York Doll Hospital as the designated expert witness. This document was offered into evidence as Exhibit B. The defendant's then introduced a modified Expert Disclosure form, dated December 23, 2005, specifically designating Mr. Chais as the expert witness.
Upon cross examination, Spirgel testified that he left the Faust firm to accept employment with Wilson, Elser in March 2005. He did not follow up his July, 2004 conversation with Chais with written correspondence and was unable to recall whether he notified the defendant's insurance carrier that he had retained Chais as an expert witness.
The final witness called by the defendant was Maija Heffernon, an associate attorney with the Faust firm who was assigned to trial preparation duties, including the underlying action. Ms. Heffernon testified that she spoke with Chais in December, 2005 concerning his availability for a pre-trial meeting. She stated that Chais indicated he was busy at the time and would meet with her after the holidays. The defendants then introduced time billing slips into evidence as Exhibit D with a notation "12/14/2005 ... draft/revise letter to our expert Mr. Chais regarding his mandatory appearance for trial and for a pre-trial meeting" and Exhibit E with the notation "12/15/2005 ... communicate (other external) telephone conference with Irving Chais regarding trial and scheduling a pre-trial conference to go over his testimony."
Heffernon testified that she spoke with Chais again in January, 2005 for the purpose of scheduling the pre-trial meeting. She stated that during the conversation, Chais advised her that he had already inspected some of the dolls, a fact which she reported to a partner at the firm. She concluded her testimony by stating that in December, 2005 she redrafted and served an Expert Disclosure form, designating Chais as the expert witness.
The widely conflicting testimony of the witnesses presents the Court with a unique situation. On one hand, testimony has been elicited from Irving Chais, a well-regarded and respected expert in the field of purchasing, selling and appraising of dolls, who has no recollection of any contact, conversation or consultation between himself and a representative of the defendant concerning the subject dolls. On the other hand, the Court has heard testimony from attorney Samuel Spirgel, a former employee of the defendant's attorneys' firm, who stated that he had a conversation with Chais at the latter's place of business and produced notes of such conversation. Spirgel also offered testimony describing in some detail, the physical location and characteristics of Chais's office where such conversation is alleged to have taken place. The defendant has also offered the testimony of Maija Heffernon, an attorney in the Faust firm who has testified about conversations she had with Chais concerning the instant litigation.
In light of the possibility that the proposed expert witness, Irving Chais, in addition to his [*4]formal retention by the plaintiff, may have had discussions with representatives of the defendant, wherein he offered his opinion on the preservation and storage of the subject dolls, the Court, in the interests of justice, finds that Chais should be precluded from testifying for either side at the trial of this action. Consequently, neither the plaintiff nor the defendant may retain Irving Chais as its expert witness for trial.
The foregoing constitutes the decision and Order of this Court.
Dated: February 22, 2006 _____________________________
HON. DENISE F. MOLIAJ.S.C.
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