STATE OF NEW YORK
SUPREME COURT : COUNTY OF CHAUTAUQUA
JAMES E. CAFLISCH, as Executor and
on behalf of the Estate of HELEN S.
Plaintiff Index No. H09693
BRIAN D. WALKER,
CHARLES EDWARD FAGAN, ESQ.
BURGETT & ROBBINS
(Kenneth M. Lasker,
Esq. of Counsel) for
Plaintiff's counsel terminated the deposition of defendant after he refused to answer a question whether he had sexual relations with decedent (beyond that he did not remember); he had admitted he had a romantic attachment, but, could not remember whether he had sex with her. Defendant's counsel interrupted a repeat of the question on the ground it had been answered; that he was refusing to allow plaintiff's counsel "not to accept his answer".
Defendant says counsel had no right to refuse to continue with the deposition even if he was correct as to the specific
Plaintiff moves for an order precluding defendant from offering testimony or proof at trial and/or for an order compelling defendant to attend a Court supervised deposition. Defendant cross moves for sanctions, costs, attorney fees and dismissal of the motion.
Plaintiff is suing for breach of contract, fraud and
overreaching against decedent when she was a 66 year old widow. The Executor contends defendant, some 16 years younger than decedent, romanced and defrauded decedent out of money and property.
This situation is nearly identical to MARINE BANK VS. G. READ WOODWORTH, Index H03779, Chautauqua County Supreme Court, decided June 29, 1992, wherein this Court held that a "walk-out" by counsel in the middle of a deposition was unacceptable. See Siegel, New York Practice, Section 356; CPLR Section 3113(b).
Plaintiff's counsel should have gone as far as he could,
permitted any other scheduled depositions of other parties to
take place, and then taken legal action. Marine Bank, Supra.
Defendant's counsel was clearly wrong in refusing to have his client answer a question relevant to the issues in this case. Had counsel for plaintiff allowed the depositions
for that day to proceed, then defendant's counsel would have
had to answer to the Court for his conduct.
In the Marine Bank case, supra, the Court awarded $250 counsel fees and $25.00 costs to defendant.
The motion of plaintiff for preclusion is denied; his motion for a court supervised deposition, expanded by the Court to include all parties is granted. The motion of defendant for sanctions is denied except that the Court awards defendant $250 in counsel fees and $25.00 in costs, to be paid or credited at time of trial.
The Court directs that depositions be scheduled within the next 60 days for the Courthouse, to be supervised by the Court or Judith Claire, referee. At that deposition, defendant will be required to answer questions concerning his relationship with decedent, sexual or otherwise, even though those questions and the answers may reflect on the memory of the deceased or be repugnant to defendant.
THIS IS THE DECISION AND ORDER OF THIS COURT. NO FURTHER ORDER SHALL BE NECESSARY.
Dated: April 6, 1995
Mayville, New York
Justice of Supreme Court