Clementi v Home Town Funding, Inc.

[*1] Clementi v Home Town Funding, Inc. 2004 NY Slip Op 51883(U) Decided on August 3, 2004 Supreme Court, Monroe County Stander, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 3, 2004
Supreme Court, Monroe County

Leonard J. Clementi, II, Plaintiff,

against

Home Town Funding, Inc., dba CNB MORTGAGE COMPANY; CANANDAIGUA NATIONAL CORPORATION; GEORGE W. HAMLIN, IV, Individually and as Chairman of the Board of Directors of HOME TOWN FUNDING, INC., dba CNB MORTGAGE COMPANY; LAWRENCE HEILBRONNER, Individually and as Treasurer of the Board of Directors of HOME TOWN FUNDING INC., dba CNB MORTGAGE COMPANY; ROBERT G. SHERIDAN, Individually and as Secretary of the Board of Directors of HOME TOWN FUNDING, INC., dba CNB MORTGAGE COMPANY, Defendants.



2002/14675



Attorney for Plaintiff:

Steven V. Modica, Esq.

Modica & Associates

2430 Ridgeway Avenue, Rochester, New York 14626

Attorney for Defendants:

Paul F. Keneally, Esq.

Underberg & Kessler LLP

1800 Chase Square, Rochester, New York 14604

Thomas A. Stander, J.

The Defendants, Home Town Funding, Inc.; Canandaigua National Corporation; George W. Hamlin IV; Lawrence Heilbronner; and Robert G. Sheridan (collectively "Defendants"), submit a motion seeking an order dismissing the Complaint in its entirety pursuant to CPLR §3126(3) based on Plaintiff's refusal to be deposed; or in the alternative, pursuant to CPLR §3126(2) prohibiting Plaintiff from offering any of his sworn testimony in opposition to Defendants' evidence and, therefore, granting Defendants' summary judgment.

Plaintiff commenced this lawsuit December 20, 2002. After motion, the Defendants served an Amended Answer with counterclaims on October 6, 2003. The Plaintiff served an Amended Reply to Defendants counterclaims October 20, 2003. After a pre-trial conference the Court issued a Scheduling Order on December 1, 2003 which required document disclosure to be completed by January 15, 2004 and depositions to be completed April 15, 2004.

I.LAW

The CPLR sets forth several penalties for refusal to comply with an order of disclosure or if a party wilfully fails to disclose information (CPLR §3126). The Court, in its discretion, may make such orders as are just, such as deeming the issues to which the information is relevant resolved in favor of the opposing party; precluding the disobedient party from supporting or opposing the claims or defenses; or striking out pleadings, staying further proceedings, dismissing the action or rendering a judgment by default (Id.).

Regarding discovery, the Court of Appeals states "we underscore that compliance with a disclosure order required both a timely response and one that evinces a good-faith effort to address the requests meaningfully" (Kihl v Honda Motor Co., Inc., 94 NY2d 118, 123 [1999]). This Court is authorized to make such order with regard to the failure or refusal to comply with disclosure as may be just (CPLR §3126; Kihl at 123; Carpenter v Browning-Ferris Industries, Inc., 307 AD2d 713 [4th Dept. 2003]; Stray v Lutz, 306 AD2d 836 [4th Dept. 2003]).

The Court of Appeals has given a broad directive regarding compliance with Discovery Orders and granted dismissal of the action for failure to comply with a Discovery Order. The CPLR gives discretion to the Courts in discovery matters. However, this Court recognizes that the Fourth Department in Carpenter v Browning-Ferris Industries, Inc., 307 AD2d 713 [4th Dept. 2003] imposed a more stringent standard for discovery motions whereby "the extreme sanction of dismissal is warranted only where there is a clear showing that plaintiff's failure to comply with discovery demands was willful, contumacious or in bad faith" (Id. at 716). The Fourth Department also relied on the general rule that "the demanding party should not be granted more relief for nondisclosure than is reasonably necessary to protect legitimate interests" (Id. at 716). [*2]

II.DISCLOSURE ISSUES

The Defendants assert that dismissal of the Plaintiff's Complaint is warranted pursuant to CPLR §3126(3) because Plaintiff failed to testify at a scheduled deposition in January 2004. The Plaintiff's deposition was scheduled for January 22 and 23, 2004 and the Plaintiff flew in from Arizona for such depositions. When Plaintiff and his counsel arrived for the deposition, counsel for the Defendants advised that he was informed on January 21, 2004 that Mr. Clementi would be facing a charge of commercial bribery in the second degree, a misdemeanor.

After this disclosure and before the deposition began, Plaintiff, on the advice of his civil attorney, immediately conferred by phone with criminal defense counsel. At this time Mr. Clementi had not seen the charges nor the statements that allegedly implicated him in a kickback scheme. Nonetheless, Plaintiff was advised not to testify at the deposition in this matter. Plaintiff's counsel put on the record that "[a]fter getting preliminary advice from criminal defense counsel we're advised that it would not be appropriate for Mr. Clementi to testify given the circumstances and situation." Mr. Clementi refused to be questioned or to testify at the deposition. Mr. Clementi voluntarily went to the Monroe County Sheriff's Department and was given the charges and statements against him in an appearance on January 22, 2004 before Judge Fred Gallina in Pittsford Town Court.

The Defendants position is that by refusing to testify at the deposition on January 22, 2004 that Mr. Clementi forfeited his claims in the lawsuit for want of prosecution or failure to proceed. The facts show that the criminal complaint against Clementi was filed by the Defendants in November 2002. An Investigative Action Report of December 20, 2003 indicates that counsel for the Defendants advised police of various details regarding Mr. Clementi, the status of the civil case, and the fact that Mr. Clementi would be in Rochester for a deposition on January 22, 2004.

At the time of the January 22, 2004 deposition the parties were in full compliance with the Court's Scheduling Order. Under the Court's Order depositions were required to be completed by April 15, 2004. The Fourth Department states that "the extreme sanction of dismissal is warranted only where there is a clear showing that plaintiff's failure to comply with discovery demands was willful, contumacious or in bad faith" (Carpenter v Browning-Ferris Industries, Inc., 307 AD2d 713,716 [4th Dept. 2003]). The Fourth Department also relies on the general rule that "the demanding party should not be granted more relief for nondisclosure than is reasonably necessary to protect legitimate interests" (Id. at 716).

Under the exigent circumstances existing in this case, Plaintiff's failure to participate in the scheduled deposition does not warrant the extreme sanction of dismissal of his complaint. The motion of the Defendants to dismiss the Plaintiff's Complaint based on Plaintiff's refusal to be deposed on January 22, 2004 is DENIED.

The alternative relief of the Defendants for an order prohibiting Plaintiff from offering any of his sworn testimony in opposition to Defendants evidence is GRANTED, but only in the event that Mr. Clementi does not make himself available for a deposition within thirty (30) days of this [*3]Decision and Order. Further, Plaintiff is required to pay reasonable attorney fees to counsel for the Defendants for the aborted deposition of January 22, 2004 in an amount to be determined by the Court upon submission of an affidavit of Defendants counsel.

Counsel for the Plaintiff shall submit an Amended Scheduling Order reflecting an agreed upon time frame of counsel for the completion of all depositions and the filing of a Note of Issue.

O R D E R

Based upon all the papers submitted in support and in opposition to this motion, upon the above Decision, and after due deliberation, it is hereby ORDERED that the motion of the Defendants Home Town Funding, Inc.; Canandaigua National Corporation; George W. Hamlin IV; Lawrence Heilbronner; and Robert G. Sheridan for an order dismissing the Complaint in its entirety pursuant to CPLR §3126(3) based on Plaintiff's refusal to be deposed is DENIED; it is furtherORDERED that the motion of the Defendants Home Town Funding, Inc.; Canandaigua National Corporation; George W. Hamlin IV; Lawrence Heilbronner; and Robert G. Sheridan for an order pursuant to CPLR §3126(2) prohibiting Plaintiff from offering any of his sworn testimony in opposition to Defendants' evidence is GRANTED, but only in the event that Mr. Clementi does not make himself available for a deposition within thirty (30) days of this Decision and Order; it is furtherORDERED that in the discretion of the Court Plaintiff, Leonard J. Clementi, II, is required to pay reasonable attorney fees to counsel for the Defendants for the aborted deposition of January 22, 2004 in an amount to be determined by the Court upon submission of an affidavit of Defendants counsel; it is furtherORDERED that Counsel for the Plaintiff shall submit an Amended Scheduling Order reflecting an agreed upon time frame of counsel for the completion of all depositions and the filing of a Note of Issue; and it is furtherORDERED that all other applications are DENIED.[*4]

Dated:August 3, 2004

Rochester, New York

__________________________________________

Thomas A. Stander

Supreme Court Justice C:\htformat\f5188350.txt