Lou Halperin's Stations, Inc. v Cross Petroleum Corp.

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Lou Halperin's Stations, Inc. v Cross Petroleum Corp. 2011 NY Slip Op 33655(U) July 14, 2011 Supreme Court, Nassau County Docket Number: 011019-10 Judge: Timothy S. Driscoll Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT- STATE OF NEW YORK SHORT FORM ORDER Present: HON. TIMOTHY S. DRISCOLL Justice Supreme Court ------------------------------------------------------------------- J( TRIAL/IAS PART: 20 LOU HALPERIN' S STATIONS, INC., NASSAU COUNTY Plaintiff IndeJ( No: 011019Motion Seq. No: 1 -against- Submission Date: 5/24/11 CROSS PETROLEUM CORP., MARK HENEIN and MARIA HENEIN, Defendants. --------------------------------------------------------------------J( The following papers have been read on this motion: Notice of Motion, Affirmation in Support and EJ(hibits........... This matter is before the Cour for decision on the motion filed by Plaintiff Lou Halperin s Stations , Inc. (" Plaintiff' ) on May 10 2011 and submitted on May 24 , 2011. For the reasons set forth below, the Cour denies the motion but directs that the deposition of Defendant Mark Henein shall tae place , until completion , on August 2 , 2011 at 9:30 a. , and August 3 2011 at 9:30 a. m. if necessar, at the Supreme Cour of Nassau County, or on another date that is mutually agreeable with counsel for the paries on or before August 16 , 2011. If Defendant Mark Henein fails to appear for his deposition as directed herein by the Cour , the Cour will entertain an application by Plaintiff, at the trial of ths matter , for an Order precluding Defendants Cross Petroleum Corp. and Mark Henein from giving evidence at the trial of this matter. [* 2] A. Relief Sought 3126 , precluding Defendants Cross Plaintiff moves for an Order , pursuant to CPLR Petroleum Corp. (" Cross ) and Mark Henein (" Mark") from giving evidence at the trial of the above-captioned action in light of their failure to appear at a deposition , in violation of the Cour' s Preliminar Conference Order dated November 24 2010 (" PC Order B. The Paries ' History Counsel for Plaintiff affrms as follows in support of Plaintiff s motion: Plaintiff is a wholesale gasoline distributor, and Cross was a customer that operated a gas station and purchased fuel from Plaintiff. Mark , the sole owner of Cross , and Maria Henein Mara ) are individual guarantors of the fuel purchased by Cross. The Verified Complaint Complaint" ) (Ex. 1 to Krman Aff. in Supp. ) seeks payment of unpaid invoices in the amount of $208 163.24. On November 5 , 2010 , an attorney (" Defehdants ' Counsel" ) fied a Notice of Appearance on behalf of the Defendants. On November 24 2010 , Plaintiffs Counsel and Defendants Counsel appeared for a Preliminar Conference before the Cour, at which time the Cour signed the PC Order (Ex. 2 to Kran Aff. in Supp. Pursuant to the PC Order , depositions of the paries (" Depositions ) were to take place on Janua 20 , 2011. Due to the paries ' scheduling conficts , the Depositions were adjoured to March 3 , 2011. On March 3 , 2011 , Maria appeared for a deposition , and two employees of Cross were also deposed. Mark did not appear on that date , and Defendants ' Counsel provided no explanation for Mark' s absence. On March 9 , 2011 , counsel for the paries appeared before the Cour for a conference. At that time, it was agreed that Mark' s deposition would be conducted on April 5 , 2011. On April 4 , 2011 , Defendants ' Counsel advised Plaintiffs Counsel by telephone and email (Ex. 3 to Kran Aff. in Supp. ) that, due to Mark' s "ongoing back problems and upcoming medical procedure " Mark would be unavailable for his Deposition , and Defendants ' Counsel would contact Plaintiffs counsel by the end of the week regarding rescheduling the Deposition. To date , Defendants ' Counsel has not contacted Plaintiff s Counsel to reschedule the Deposition despite numerous efforts by Plaintiffs Counsel to resolve this matter. Plaintiffs Counsel sent a letter dated April 27 , 2011 to Defendants ' Counsel (id. at Ex. 4) in which he advised Defendants counsel of Plaintiffs intention to file the instant motion. Defendants ' Counsel did not respond [* 3] to that letter. C. The Paries ' Positions Plaintiff submits that the Cour should issue an Order, pursuant to CPLR ~ 3126, precluding Defendants Mark and Cross from giving evidence at the trial of this action, in light of Mark' s failure to be deposed as directed by the Cour. Defendants have submitted no opposition or other response to the instant motion. RULING OF THE COURT CPLR ~ 3126 provides as follows: If any par, or a person who at the time a deposition is taken or an examination or inspection is made is an officer , director, member , employee or agent of a par otherwse under a par' s control , refuses to obey an order for disclosure or wilfully fails to disclose information which the cour finds ought to have been disclosed pursuant to this aricle , the cour may make such orders with regard to just , among them: the failure or refusal as are 1. an order that the issues to which the information is relevant shall be deemed resolved for puroses of the action in accordance with the claims of the par obtaining the order; or . 2. an order prohibiting the disobedient par from supporting or opposing designated claims or defenses , from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical , mental or blood condition sought to be determined , or from using certain witnesses; or 3. an order strking out pleadings or pars thereof, or staying fuher proceedings until the order is obeyed , or dismissing the action or any par thereof, or rendering a judgment by default against the disobedient par. The nature and degree of the penalty to be imposed pursuant to CPLR ~ 3126 lies within the sound discretion of the trial cour. 482 (2d Dept. 2010), quoting Workman McArthur v. v. Town of Southampton 892 N. Y.S.2d 481 New York City Hous. Auth. 48 A. D.3d 431 (2d Dept. 2008). The cour has broad discretion to supervise disclosure to prevent uneasonable anoyance , expense , embarassment , disadvantage or other prejudice. Eber Bros. v. Ribowsky, 266 A.D.2d 499 , 500 (2d Dept. 1999). The Cour is concerned that Mark' s Deposition has not taken place , and that Defendants have not provided the Cour with an explanation for Mark' s failure to be deposed. The Cour however, declines to grant Plaintiff s motion at this junctue , in par due to Defendants Counsel' s reference to Mark' s medical condition as discussed supra. Accordingly, the Court [* 4] denies the motion but directs that the deposition of Defendant Mark Henein shall take place until completion , on August 2 2011 at 9:30 a. , and August 3 2011 at 9:30 a. m. if necessar, at the Supreme Cour of Nassau County, or on another date that is mutually agreeable with counsel for the paries on or before August 16 , 2011. If Defendant Mark Henein fails to appear for his deposition as directed herein by the Cour , the Cour wil entertain an application by Plaintiff, at the trial of this matter , for an Order precluding Defendants Cross Petroleum Corp. and Mark Henein from giving evidence at the trial of this matter. All matters not decided herein are hereby denied. Ths constitutes the decision and order of the Cour. The Cour reminds counsel for the paries of their required appearance before the Cour on September 15 , 2011 at 9:30 a. ENTER DATED: Mineola, NY July 14 2011 lS. ENTERED JUL 222011 NASSAU COUNTY COUN CLERK' S OFFICE

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