Bernal v Zada West LLC.

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Bernal v Zada West LLC. 2011 NY Slip Op 33496(U) December 27, 2011 Sup Ct, NY County Docket Number: 116757/2008 Judge: Paul G. Feinman 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] . . . .. .- . I -NEW YORK2 COUplTv 2 PART 1 , SUPREME COURT OF THE STAT ¬ OF NEW YORK PUE$ENT: J-0 -V- Tha fobwing papem, numborsd 1 to were read on thlr motion Wfor, - I I Cross-Motion: CJ Yes 0 No Llp~ falvgOlh0 papen, t I8 ORDEREDthat thl~ the rn0tlo-k FILED JAN 03 2012 NEW YORK I. COUNTY CLERKS OFFICE Check one: 0 FINAL DISPOSITION DONOTPOST E PCICC l 1SUBMIT ORDERIJUDO. 1 NON-FINAL DISPOSITION REFERENCE 0 SEITLE ORDERIJUDGI. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YDRK:C M L TERM: PART 12 - -I..-."-H-----Y.X - - l - - _ _ l _ l _ _ U _ - - - - - RICARDO NICOLAS BERNAL, Index Number Defendants. .. ZADA WEST LLC md ZADA REALTY LLC, Third-party Plaintiffs, NwY&NY 10005 (212) 425-0700 Mu DECISION AND ORDER ZADA WEST LLC and ZADA REALTY LLC, lor the Plrlrtm Kakter and K o k , Esqa, By: o l i l S. Kdnar, Esq. 140 Brondway, 3 fl P I! - Mot. Sq.No. Plaintiff, T.P. Index Number j90627nOlL For tks Dmdmatt Laster m a Katz & Dwyot, LLP w b By: Harry Stohbar& Eaq. 120 Bmadway New Ywk. NY (212) 964-663 1 Paper6 considered in review of lhis motion to suikt: 10271-0071 1 Doctlmrnt No. I 2 Pnpm Notlcc of Motlon, Affirmation, M d a v l t . Exhlblts Afnmlon In Opporllon, Exhibit Rcply Aihnallok Exhibfts FILED JAN 03 2012 NEW YORK COUNTY CLERKS OFFICE 3 PAW, G FEINMAN, J.: . Plaintiff Ricardo Bernal movm for an order striking defendants' answer for failure to comply with discovery, or in the alternative for a flrrthtr deposition of defendant Zada Wtst L E . By interim order dated September 14,201 1, the court resolved another branch of the motion concerning extending the note of issue by directing the parties to file the note of h u e Wore October 31,201 1. The court also orderod scald the podon ofthe September 14,201 1 oral argument addressing the deposition issue conducted I camera, pursuant to 22 NYCRR n I [* 3] 2 16.1. Here follows the decision concerning the remaining branch of the motion. This is a personal injury action, According to the verified complaint, defendanta Zada West and Zada R d t y , the owners and managecs of certain premises on West 4p Street, New Yo&, New York, cawed to be hird a construction company in about October 2007 to perfom work on the premises, and plaintiff was an employee of the construction company (Mot, A Ex. par. Compl. 71 1-3 11). Plaintiff was injured while at work on October 22,2007 (Vcr. Compl. fl34-35). He commenced an action by filing EI summons and verified complaint on December 16,2008. The complaint alleges causes of action sounding under Labor Law $8 200 and 241 (6), and common law ncgli8cncc. Issue was joined and defendants have commenced a third-party action against the construction company. The partics havc bccn cwaged in discovery. According to plaintiff, during the deposition of Daniel Rahimzada, who was teaifying on behalf of Zada West, he rcfirsed to ruspond to ''proper and relevant questions" and plmdd a Fifth Amendment privilege against self-incrimination (Mot. Kelnar Aff. 8 6). Specifically, he r a M to answer one particular question. Q: W s hc [plaintiffs employer Pctcr Rukaj] paid the entire sum of $60,000 BS pct the a contract? A: No. Q: Do you know how much Mr,Ruka] w paid? s A: I bclicve $30,000, Q: Is there a reason why he was paid less than the total amount? A: I choose not to answer that. I take thu Fifth on that. (Mot. EX.E,EBT,Oct. 15,201 0, p. 3 1:2-11). Plaintiff argues that dcfcndant's refusal to answer such a qucdon w c ~ lmwarrantedand 2 [* 4] prevented h m from conducting B complete deposition (Mot. i Kclncr Aff. 14-15). H claims c that there has been no showing that defendant s answer to the question a s k 4 w u l d i n h l n a t e him or reflect his involvement in an activity for which he can be criminally prosecuted (Id 124). Ha m o m for an order directing a h t w depositionof R a h i m d a t obtain an mwr to the rh o question p o d and to m y follow-upquestions which may grow out of the answer. Defendants oppose the motion. They argue that tha question is irrelevant to the clalm of strict liability under Labor LAW 8 241 (6) (Steinberg Aff. in Opp. ml7-30). They also t & plaintiffs argument that Rahimzada, has no ri&t h to invoke his constitutional privilege JS madtlw. Defendants rely on c a w auch as Kastegur v United States, 406 US 44 1* 444-445 (19721, and Stare v Cumy Resources, Inc., 97 AD2d 508,509 (2d Dept 1983), which hold that the pendency of a criminal proceeding or investigation is not a prerequisite for the invocation of tho privilege against self incrimination (Stcinbcqg Aff, f13 1-39). Pursuant to the Fifth Amendment, No purson. .shall be compelled in any criminal c 8 9 ~ to be a witness against himself (USConst. Fifth Amend). Furthermore, such Fifth Amendment protection allows an individual to r e k c to answer official questions in any pmcuading, civil or criminal, formal or informal, where the amwen might incriminate him [or her] in future criminal proceedings (Access Capita/, Inc. v DeClcco, 302 AD2d 48, S 1 [lU Dept 20021). To help resolve plaintiffs motion,the court conducted part of the oral argumcnt i n canteru and expurte with counscl for defendant on September 14,201 1. This portion of the argumant was transcribed and than sealed after B frnding made pursuant to 22 NYCRR 216.1 I m r cwefbl consideration of thc arpments made in cameru and ex parre and consldarlng thu e at.gumantB presentad harain, the court datarmincs thet pwauant to the Fifth Amendment protection q i n s t self-incrimination, Rahimzada has good cause to refuse to answur the specific 3 [* 5] question fromthe deposition, and that such an answer would w e a l pnvllcgcd i n f o d o n . Thc court IS cognhnt of plaintiffs argument that thc privilcgc is a personal one and may not b invoked by an entity such a corporation (Kelncr Reply M.gT 14-18). Pldntiff cites United Stdes v White, which holds that individuals acting as repmcntativcs of a collective group, cannot be mid to be exercising their personal rights and duties nor be entitled to their purely p o d privileges (322US 694,699 [1944]). Rather, while explains, the individuals ~ u m c the rights, duties, and privilagan of the artificial entity or asaociation of wbich they are agunts or officers I I . [end in] their official capacity . , they have no privilege against self-inmimMon? Plaintiff cites S C V C New York castes, including Stuart v Tommino, 148 AD2d 370 (1 Dept. ~~ 1989) (no Fiftb amendrncnt privilege on behalf of corporation), also standing for the propasition that the privilege is an individual one rather than belonging to an entity. Notwithstanding,the court is pmsuadud based on the sealed record, that own thou& M d a p p m d on behalf of Zada West, that he i atitlcd to invoke the Fifh amendment ma s privilege in this context. If forced to answer, the court is satisfied he could realistically axpow h m e fto personal criminal liability. Therefom, plaintiffs motion to strike defendants answer isl i denied, and his motion in the alternative seeking a M e r deposition of Zada Ws is denied. s et It is ORDERED that plaintiffs motion is denied in its entirety. This constitutes the decision and order of th FILED JAN 0 3 2012 Dated: Dwamber 27,201 I New York, New York J.S.C. NEW YORK COUNTY CLERK S OFFICE (201 I P I2D&O-l16757-2008-001-JGI) t 4

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