Concorde Art Assoc., LLC v Weisbrod Chinese Art, Ltd.

[*1] Concorde Art Assoc., LLC v Weisbrod Chinese Art, Ltd. 2009 NY Slip Op 50754(U) [23 Misc 3d 1115(A)] Decided on March 18, 2009 Supreme Court, Nassau County Austin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 18, 2009
Supreme Court, Nassau County

Concorde Art Associates, LLC and SONDRA LANDY GROSS, Plaintiffs,

against

Weisbrod Chinese Art, Ltd., MICHAEL WEISBROD, ROBERT POOR and THOMAS FEIST, Defendants.



14427/2004



COUNSEL FOR PLAINTIFFS

Forchelli, Curto, Crowe, Deegan, Schwartz, Mineo & Cohn, LLP

330 Old Country Road, PO Box 31

Mineola, New York 11501

COUNSEL FOR DEFENDANTS

(Weisbrod Chinese Art, Ltd. and Michael Weisbrod)

Alan G. Kraut, Esq.

1325 Franklin Avenue

Garden City, New York 11530

Robert Poor

115 Magnolia Lane

Plymouth, Minnesota 55444

(Thomas Feist)

Michael W. Holland, Esq.

421 Willis Avenue Williston Park, New York 11596

Leonard B. Austin, J.

Defendants, Weisbrod Chinese Art, Ltd. and Michael Weisbrod (collectively "Weisbrod"), seek an order requiring Plaintiffs, Concorde Art Associates, LLC and Sondra Landy Gross (collectively "Concorde"), to furnish Defendants with the complete reports of Plaintiffs' expert, John Twilley ("Twilley"), and to permit Defendants to depose Twilley pursuant to CPLR 3101(d)(iii). Weisbrod also seeks to preclude Concorde from offering evidence about the fair market value of the items purchased by Concorde as determined by Michael Cohn Asian Antiquities, LLC ("Cohn").

BACKGROUND

Concorde purchased forty eight (48) pieces of ancient Chinese art and artifacts from Weisbrod. Concorde alleges that most of the items sold by Weisbrod to Concorde were not authentic or had been significantly restored resulting in a decrease in value. Testing and inspection of the items was performed by both Cohn and Twilley, an art conservation scientist, at Concorde's request.

Previously, Weisbrod moved for a supplemental expert disclosure from Concorde. In the Court's decision, dated August 16, 2006, the Court determined that "Concorde's (expert) responses are conclusory, general and nonspecific". (Aug. 16th Order, p. 7). The Court then directed Concorde to provide Weisbrod with a statement identifying the test(s) performed on each item in addition to identifying which items were restored. With respect to Cohn's valuation of each item, Cohn was directed to advise as to the specific value of each item and the facts relied upon in reaching such a decision.

Thereafter, Concorde served "Plaintiffs' Supplemental Expert Disclosure", dated September 15, 2006. In this disclosure, Plaintiffs annexed a spreadsheet from Twilley indicating each item tested and the specific tests performed on said item. A second spreadsheet was annexed indicating which items were allegedly restored.

During a conference before the Court on April 3, 2008, the Court directed Concorde to provide further information regarding the basis for why an item was deemed to be not authentic. Concorde then served "Plaintiffs' Supplemental Expert Disclosure", dated April 30, 2008. Annexed to Plaintiffs' April 2008 disclosure is a chart listing the items by description and catalog number. The last column is entitled "Conclusion on Authenticity". Examples of the information provided in that column are as follows:

Item number 4: "Testing shows modern materials and indicates workmanship"

Item Number 5: "Testing indicates that the Gui is an assemblage of unrelated parts."

Following receipt of Concorde's latest expert disclosure, Wesibrod moves for further disclosure pertaining to Concorde's expert. Weisbrod maintains that the findings by Twilley do not relate to the allegations in the second amended complaint. Weisbrod notes that Plaintiffs allege in the second amended complaint that one of the objects was made of brass, "a material which was not consistent with the era from which the ding [*2]was to have originated." (Am. Compl. ¶39). Weisbrod points out that none of Plaintiffs' expert disclosures identify an object made of brass. In addition, the second amended complaint alleges that 32 of the objects "were not genuine as having either been restored, or evidenced an active attempt to conceal substantial damage, such as complete fractures held together with glue and paint." (Am. Compl. ¶40).

Weisbrod argues that the Plaintiffs' responses regarding Twilley do not identify these items or refer to these findings and that the allegations contained in the second amended complaint do not correlate to Twilley's "conclusions on authenticity" provided in the last supplemental expert disclosure. Weisbrod asserts that Plaintiffs use summary language such as "modern materials", "modern workmanship", "modern technology", "modern fabrication", and "modern assemblage" rather than provide factual findings as required. Given the latest disclosure, Weisbrod maintains that it is still in the position of having to surmise what Twilley and Plaintiffs mean by the terms "authentic, genuine, restored, fake or modern". Given the ambiguities of the meanings of these words, Weisbrod argues that special circumstances exist which requires disclosure to Defendants of Twilley's complete reports in addition to allowing the Defendants to depose Twilley. Weisbrod states that ,"(i)t appears that only with the deposition of Mr. Twilley will these ambiguities be finally resolved which will eliminate any prejudice to the dependants and present to the ultimate trier of the facts all of the facts and circumstances regarding the actual testing procedures used by Mr. Twilley and his actual findings in support of Plaintiffs' claims." (Weisbrod Letter, p. 3).

Weisbrod also seeks an Order precluding Plaintiffs from using the Cohn disclosure as the report fails to provide any basis for Cohn's determination of market value. The report consists of five items, their description and then a "fair market value" without any other information provided.

Concorde opposes Weisbrod's application in that Concorde maintains that it already produced appropriate expert disclosures in compliance with CPLR 3101(d) and the Court's directives. Concorde asserts that Weisbrod has failed to show "special circumstances" which would allow for the deposition of Twilley. Concorde maintains that their expert disclosures properly identify the experts, state their qualifications, provide a curriculum vitae and detail the subject matter of the expert's intended testimony.

Concorde objects to disclosing the experts' reports as being privileged since the reports were prepared in anticipation of litigation. In addition, Concorde asserts that Weisbrod cannot establish special circumstances to allow for an expert deposition since it provided Weisbrod access to the objects to perform its own tests.

DISCUSSION

CPLR 3101(d)(i) provides that:

Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion.

CPLR 3101(d)(iii) states that "(f)urther disclosure ...may be obtained only by [*3]court order upon a showing of special circumstances..."

With respect to the deposition of an expert witness, depositions of such witnesses will only be ordered where special circumstances are shown. Kaufman v. Lund Fire Products Co., Inc., 8 AD3d 242 (2nd Dept. 2004). Special circumstances have been found where the evidence which one party's expert had an opportunity to examine no longer exists or has been destroyed. See e.g., Dixon v. City of Yonkers, 16 AD3d 542 (2nd Dept. 2005).

The requirement that special circumstances must exist in order for an expert deposition to be conducted is more than a "nominal barrier" to discovery and such a requirement cannot be satisfied by allegations that the absence of such deposition will result in the inability to properly prepare for trial. 232 Broadway Corp. v. New York Property Ins. Underwriting Assn., 171 AD2d 861 (2nd Dept. 1991). Without allegations that the evidence has been lost, destroyed or otherwise rendered unavailable to the party seeking the deposition, a deposition of an expert is inappropriate. Id. When special circumstances do not exist, it is appropriate for the court to deny the request to depose another party's expert. Columbia Telecommunications Group, Inc. v. General Acc. Ins. Co. of America, 275 AD2d 340 (2nd Dept. 2000).

Concorde has made available to Weisbrod for inspection the items which Concorde purchased from Weisbrod. Weisbrod has failed to allege any "special circumstances" which would allow for this Court to order the deposition of Twilley. Weisbrod's only allegations in support of a deposition of Twilley pertain to Weisbrod's ability to prepare for trial which is an insufficient basis to direct the examination before trial of an expert.

CPLR 3101(d)(2) states that:materials... prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

A report prepared by a consultant in anticipation of litigation is not subject to disclosure if the party seeking its disclosure fails to demonstrate a substantial need for the report or inability to obtain the report's "substantial equivalent by other means". Oakwood Corp. v. HRH Construction Corp., 51 AD3d 747, 749 (2nd Dept. 2008). See also, Daniels v. Armstrong, 42 AD3d 558 (2nd Dept. 2007); and Heimanson v. Farkas, 292 AD2d 421 (2nd Dept. 2002).

Twilley's report was prepared prior to the commencement of this action. Plaintiffs maintain that the testing was done on counsel's recommendation after Plaintiffs sought legal representation. Thus, the Twilley reports were clearly prepared in anticipation of litigation. Since Weisbrod has failed to demonstrate a substantial need for the report or inability to obtain the report's equivalent by other means, especially in light of the fact that Concorde has made the items available for inspection by Weisbrod, the Twilley reports are not discoverable.

Regardless of the foregoing, the Court is concerned that the allegations of the second amended complaint, which were supposedly based upon Twilley's findings, do [*4]not correlate to the Plaintiffs' numerous expert disclosures. Consequently, the Court directs Plaintiffs to supplement their expert disclosures yet again to identify which items are referred to in paragraphs 39 through 42 of the second amended complaint.

Moreover, in the Court's Order, dated August 16, 2006, the Court noted that "(r)responses to demands made for expert information are inadequate and fail to comply with CPLR 3101(d)(1) if they are conclusory or so general and nonspecific so the defendant has, ...not been enlightened to any appreciable degree about the content of this expert's anticipated testimony.'" (Order at p. 6-7 citing Champan v. State, 189 AD2d 1075 [3rd Dept. 1993]). Thus, Plaintiffs are also directed to provide a supplemental disclosure with respect to their "Conclusion on Authenticity" findings so that whenever the term "modern" is used the Plaintiffs are to provide a basis for the use of the word "modern" in their findings.

With respect to Weisbrod's application regarding the Cohn report, Weisbrod's submission fails to adequately brief this request in the six lines devoted to this section including the failure to cite any legal authority. As such, the Court denies that portion of Weisbrod's application seeking preclusion of evidence concerning Concorde's claim that inaccurate appraisals were provided at the time of sale with leave to renew its application. However, the Court notes that in its August 16, 2006 Order, Concorde was directed to "advise Weisbrod of Cohn's opinion as to the specific value of each item and the facts upon which Cohn relies in reaching his opinion." (Order at p. 7). Plaintiff's disclosure with respect to the Cohn report fails to include the facts upon which Cohn relies in reaching his opinion. Thus, Plaintiffs are directed to supplement their expert disclosure with respect to Cohn to include the information ordered by the Court in August 2006 to be produced.

Accordingly, it is,

ORDERED, that, the application of the Defendants, Weisbrod Chinese Art, Ltd. and Michael Weisbrod, seeking disclosure of the reports of John Twilley and to depose John Twilley is denied; and it is further,

ORDERED, that Plaintiffs are to supplement their expert disclosures pertaining to Twilley by April 3, 2009 by identifying which items are referred to in paragraphs 39 through 42 of the second amended complaint and with respect to Twilley's "Conclusion on Authenticity" findings such that Plaintiffs are to provide a basis for the term "modern" whenever the term is used; and it is further,

ORDERED, that Defendants' application to preclude Plaintiffs from introducing evidence at trial based upon the findings of Michel Cohn is denied with leave to renew; and it is further,

ORDERED, that Plaintiffs are to supplement their expert disclosure with respect to Michael Cohn to include the information the Court ordered Plaintiffs produce in its August 2006 Order with respect to the basis for Cohn's findings; and it is further,

ORDERED, that the parties are to appear for a certification conference on April 8, 2009 at 9:30 a.m. in light of their May 4, 2009 trial date.

This constitutes the decision and Order of this Court.

Dated: Mineola, NY

March 18, 2009

____________________________ [*5]

Hon. LEONARD B. AUSTIN, J.S.C.