Zelkis v Brain Fashion, Inc.

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Zelkis v Brain Fashion, Inc. 2003 NY Slip Op 30163(U) March 20, 2003 Supreme Court, New York Docket Number: Judge: Walter B. Tolub 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 OF THE STATE OF NEW YORK PRESENT: - NEW YORK WALTER B, TObldP COUNTY PART Justice z -9 J - INDEX NO. MOTION DATE -vMOTION MOTION CAL. NO. The following papers, numbered 1 to Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... - Exhibits Replying Affidavits Cross-Motion: %Yes s1-C were read on this motion to/for I Answering Affidavits /9- SEQ. NO. PAPERS NUMBERED I I II 0 No Upon the foregoing papers, it is ordered that this motion Dated: Check one: 0 FINAL DISPOSITION ffi~bl B,TOLUF J-s-C. NON-FI AL7DISPOSITION [* 2 ] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 15 X _ _ _ _ - - - I - _ - - - - _ - - - - - - - - - - - - - - - - - - - - - - - - - G E O R G E S ZELDIS Index No. 125154/2000 M t n Seq. 0 0 2 Plaintiff, -againstBRAIN FASHION, J A C O B 0 KANONO, INC., E L I S A SALINAS, and WALTER B. T O L D , J. : By this motion, plaintiff plaintiff) seeks an order defendants Brain Fashion, Georges pursuant Elisa to Zeldis CPLR Salinas, (hereinafter, 3124 and directing Jacobo Hanono (hereinafter, defendants) to produce documents and things requested in Plaintiff s First Notice of Discovery and Inspection and to answer Plaintiff s first s e t of interrogatories. Defendants cross move pursuant to CPLR 3126 for,an order dismissing the complaint for failure to abide by discovery orders, for an order requiring plaintiff to post security pursuant to CPLR 8501, and for t h i s Court to strike plaintiff s notice of discovery and inspection pursuant to CPLR 3103(a). Defendants additionally seek an order directing that defendant s depositions be held either in Mexico, b y written questionnaire, or at the time of trial. Lastly, defendants seek an order directing that any oral deposition of defendants proceed with a Spanish interpreter at the expense of plaintiff. Plaintiff s original complaint contained seven causes of action, three of which were dismissed by this Court s 3/18/2002 [* 3 ] decision. Plaintiff's remaining four causes action of allege violations of the New York State and New York City Human Rights Laws (first and second causes of action), discrimination (third cause of action) and breach of contract (sixth cause of action). Defendant's answer to the Complaint contained four affirmative defenses and asserted four counterclaims. The f i r s t and fourth counterclaims misrepresented allege that plaintiff his qualifications and failed to produce designs in a timely and economical manner, thereby damaging the defendants. The second counterclaim alleges abuse of plaintiff's expense account during business trips. The third counterclaim alleges breach of a confidentiality agreement contained within the employment contract and alleges improper use of proprietary information. Discussion Upon review of the papers presented, plaintiff's and defendant's motions are granted in part, and denied in part. Discovery Issues CPLR 3101 mandates that full disclosure be given of "all matter material and necessary in the prosecution and defense of an action" ( C P L R 3101 [a]) . In the instant matter, this information includes among other things, information concerning plaintiff's medical conditions that have been put into issue Steer/Peanut Gallery, 277 A.D.2d includes discovery pertaining 965 [ 4 t h Dept 20001). to counterclaims 2 (Davidson v. It also raised by the [* 4 ] defendants(Huntinqt0n Tobacco Companv Inc. Monev Pension Sharins Fund v. Fromer, 193 A.D.2d 718 [ 2 n d Dept. & Profit 19931; Citv Mortaaqe Co. v. Leopold S e i d l Corporation, 261 A.D. 831 [ 2 n d Dept. 19411). With regard to plaintiff's First Notice of Discovery and Inspection and First Set of Interrogatories, this Court notes that the lengthy documents do contain some requests that are confusing, overbroad, or both. However, this does not explain why defendants have failed to answer numerous questions concerning issues that they themselves opened the door on when they asserted counterclaims alleging among other things, economic damage to the company as a result of failure to timely produce designs, abuse of an expense account, and improper use of proprietary information. Plaintiff is clearly entitled to discovery on counterclaims much like defendants are entitled to discovery on stated causes of action (Huntinqton Tobacco, 193 A.D.2d 718; Citv Mortaaqe, 2 6 1 A.D.831). Plaintiff however, bears the responsibility of adequately disclosing relevant and necessary information to allow defendant to defend against the remaining causes of action in the instant Complaint. Additionally, when a plaintiff places a medical condition in issue, plaintiff has a responsibility to turn o v e r authorizations for medical records, including those for all treating physicians. Substitution of this process for exchanging copies of medical records in possession by the plaintiff or his 3 [* 5 ] attorneys is not sufficient. That having been said, discovery will proceed as per the directives in this Order and Decision. Defendant's csoss-motion to dismiss pursuant to CPLR 3216 is denied. Depositions Defendants' cross-motion requesting an Order directing that any depositions required of defendants be held either in Mexico, at time of trial, or by written questionnaire is denied. In August 2002, this Court So-Ordered a stipulation signed by the attorneys representing all parties to this action providing for, among other things, defendants' depositions to be held in New York. as the validity of the stipulation has not been Inasmuch disputed, defendants depositions shall be held in New York. Defendants however, are entitled to utilize the services of an interpreter. Although evidence has been presented indicating that at least Ms. Salinas speaks English competently enough to be interviewed by the N e w York T i m e s , a deponent who speaks English as a second language has a right to have a competent interpreter present at pre-trial depositions and at trial (PeoDle of the State of New Y o r k v. Pavao, 59 N.Y.2d 282 [ 1 9 8 3 1 ; g t h Street Estates Inc. v. Rohatvnska, 160 Misc.2d 560 [ C i v . Ct. NY 19941). Moreover, plaintiff bears the responsibility of paying for the interpreter's services. Lastly, defendants motion for an Order requiring plaintiff to 4 [* 6 ] post security pursuant to CPLR 8501 in the sum of $1000.00 is granted. Plaintiff admits that he is no longer a resident of the State of New York. Accordingly, he is required to post security for costs (CPLR 8501[a]; Verdino v. Alexandrou, 253 A.D.2d 553 [ 2 n d Dept. 1998); Gonzalez v . Flushins Hospital Medical Center, 245 A. D.2d 543 [ 2 n d Dept. 1 9 9 7 1 ) . This Court finds no reason to require plaintiff to post security for costs in an amount that is greater than proscribed by statute. As such, plaintiff shall post security in the amount of $500 ( C P L R 8 5 0 3 ) . Accordingly, it is ORDERED that plaintiff's motion to compel defendants to produce documents and things requested in Plaintiff's First Notice of Discovery and Inspection is granted to the following extent: Plaintiff shall revise items 7 and 53 to clarify the items requested and submit new requests to defendants within 30 days of this order. Defendants shall respond to the new requests within 30 days of receipt of the new request. Defendants are to answer item 25 and provide business travel expenditure records from 1997-2001 w i t h i n 30 days of this order. Defendants a r e dayplanners, to answer item 54 and produce datebooks, appointment books and calendars detailing defendants' business travel for the years 1997-2001 within 30 days of this order. 5 [* 7 ] (4) Defendants are to answer and/or produce documents relevant to items 36, 37, 38, 46, 47, 48, 50, 51, 59, 60, 61, 67, 68, 70, 71, 72, 73, 74, and 75 within 30 days of this order; and it is further ORDERED that plaintiff s motion to compel defendants to answer requests 76, 77 and 78 in plaintiff s First Notice of Discovery a n d Inspection are denied for failure to provide information, plaintiff s requests for information pertaining to requests No. 62, 63, 64, 65, and 66 are denied; and it is further ORDERED that plaintiff s motion to compel defendants to produce documents and things requested in plaintiff s First Set of Interrogatories is granted to the following extent: Plaintiff shall revise interrogatory No. 2 to clarify the items requested and submit said interrogatory to defendants within 30 days of this Order. Defendants are to answer interrogatories Nos. 5 and 6. If no additional information is available to be provided, defendants shall provide a stipulation to that effect within 30 days of this Order. Defendants are to answer interrogatories Nos. 27, 28, 3 8 , 39, 40, 41, 46, and 54 within 30 days of this Order; and it is further ORDERED that plaintiff s motion to compel defendants to produce documents and things requested in plaintiff s First Set of Interrogatories is denied as to interrogatories 18-26 as there is no indication that these documents were not produced; and it is 6 [* 8 ] further ORDERED that plaintiff's motion to compel defendants to produce documents and things requested in plaintiff's First Set of Interrogatories is denied as to interrogatories 32, 34, 43, and 45 is denied; and it is further ORDERED that plaintiff's motion to compel defendants to produce documents and things requested in plaintiff's F i r s t Set of Interrogatories is denied as to interrogatories 47, 48, and 53 are denied for failure to provide information; and it is further ORDERED that plaintiff shall provide defendant with medical authorizations for plaintiff's doctors a n d medical records, to the extent not already provided within 30 days of this Order, and it is further O R D E R E D that depositions o f defendants shall take place within 60 days of this Order in New York County; and it is further ORDERED that a competent Spanish translator shall be provided for defendants' depositions, the cost of which shall be paid by plaintiff; and it is further ORDERED that plaintiff s h a l l obtain an undertaking in the amount of $500.00 within 20 days of service of a copy of this order with notice of entry, and must file proof of said undertaking with the Court; and it is further ORDERED that defendant's remaining cross-motion requests are denied. 7 [* 9 ] Counsel for the parties are directed to appear for a Compliance Conference at I.A. Part 15, Room 335, 60 Centre S t r e e t , New Y o r k , New York on March 28, 2003 at 11:OO a.m. This memorandum opinion constitutes the decision and o r d e r of t h e Court. HON. WALT@R B . TOLUB, J . S . C . 8

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