Simmons v Minerley (2007 NY Slip Op 51623(U))

Simmons v Minerley

2007 NY Slip Op 51623(U) [16 Misc 3d 1128(A)]

Decided on August 24, 2007

Supreme Court, Dutchess County

Pagones, 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This opinion is uncorrected and will not be published in the printed Official Reports.

The defendants move for an order striking the plaintiffs' complaint for their alleged "willful and contumacious failure and refusal to follow the controlling rules during the course of the examination before trial;" compelling the appearance of John Simmons for the purpose of submitting to a full and complete deposition; and for an award of costs occasioned by "the improperly interrupted deposition" of the plaintiff. The plaintiffs move for an order of recusal by this Court.

On June 12, 2007, plaintiff John Simmons appeared for his deposition. At that time, the plaintiff was represented by Andrew Genna, Esq., who has submitted an affirmation in support of the application for recusal. The defendants were represented by Dennis O'Connor, Esq. at the deposition. At one point in the deposition, Mr. O'Connor began questioning the plaintiff regarding a notice of claim served upon the Town of Red Hook which plaintiff acknowledged signing. The plaintiffs' counsel directed his client not to answer certain questions about the allegations contained in the notice of claim.

The deposition continued on this topic for some time with Mr. Genna on several occasions directing the witness not to answer questions.^[FN1]

Well, that's good. I'd like you to put that on the record too. When I said we don't do telephone conferences during depositions according to the new rules, he said maybe Judge Pagones will do it for me, he's a friend of mine.

When I say that he is a friend of mine I mean that every judge in this district is a friend of mine and officer of the court. And I assume that every judge is a friend of yours and your law firm's as well.

No. I wouldn't say that. And I think that clearly creates an improper impression.

I'm going to stop for a moment, leave the room, and try to make contact with chambers and see if I can get a ruling so we can continue. [*4]

My intention is, I attempted to call chambers and there was no answer. And I'm going to take a chance and invite Mr. Genna to come across the street with me to see if we can get some guidance from the Court. We'll see what happens.

I'm going to order a copy of the transcript and make a motion to complete the deposition of the Plaintiffs. And that's what we're going to do. Thank you.

Just let the record indicate that I'm willing to continue with the deposition. I am not going to go across the street. It's not called for by the rules. Especially in light of the fact that Judge Pagones is supposedly Mr. O'Connor's friend I don't think that that would be appropriate.

Judge Pagones and I have never met outside of the court, so I wouldn't be concerned about that. And I'm sure that he's just as friendly to you as he ever was friendly to me. And I would love to continue with the deposition, but if you continue to coach the witness —"

The basis of the plaintiffs' application for recusal is that plaintiff was "disturbed" that Mr. O'Connor indicated that he was a "good friend" of the undersigned and implied that the court would make an exception to established rules on the basis of that purported friendship. The plaintiffs' counsel avers that he " is not suggesting in any manner whatsoever, that Judge Pagones is not capable of presiding over the plaintiffs' case in a fair and impartial manner." Counsel avers that he "is making this motion (for recusal) to protect the plaintiff from the appearance of impropriety, or impartiality, created by Mr. O'Connor's comments about his friendship with Judge Pagones." Plaintiff John Simmons acknowledges that he does not know whether Mr. O'Connor is a good friend of the undersigned and that he does not know whether the undersigned can put his alleged friendship with Mr. O'Connor aside and preside over the case in a fair and impartial manner. Mr. Simmons does aver "that (he) would not be comfortable with Judge Pagones continuing to preside over (his) case, even if Judge Pagones were to disavow any relationship with Mr. O'Connor."

"A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consanguinity or affinity to any party to the controversy within the sixth degree." [*5]

22 NYCRR §§100.3(E)(1)(a)-(f) require disqualification in enumerated circumstances. Neither the plaintiffs nor their attorneys allege that any of the grounds set forth in Judiciary Law §14 or in the rules of the Chief Administrative Judge require disqualification in this action. In fact, in a reply affirmation, the plaintiffs' attorney, George A. Kohl, affirms:

"The plaintiffs are not claiming that Judge Pagones' recusal is mandated by §14 of the Judiciary Law. As noted in Mr. Genna's moving affirmation, the plaintiffs are not contending that Judge Pagones did anything to warrant recusal in this case."

The basis of the plaintiffs' application for recusal are statements made by the defendants' attorney which, according to the plaintiffs' counsel "create an appearance of impropriety and impartiality...and casts the fairness of the judicial process into question, in this plaintiff's mind."

In circumstances, as herein, where no enumerated grounds for disqualification can be established, it has been held that it is up to the conscience and discretion of the court to determine whether or not it should recuse itself. (Berman v. Herbert Color Lithographers Corp., 222 AD2d 640 [2d Dept. 1995]; People v. Moreno, 70 NY2d 403 [1987].) In fact, in the absence of ill will toward a litigant, a judge has an affirmative duty not to recuse himself but to preside over a case. (U.S. v. Mitchell, 377 F.Supp. 1312 [D.D.C. 1974] aff'd 559 F2d 31 D.C. Circuit [1976].)

I have carefully reviewed the allegations and the circumstances which led to this application for recusal. I am not a "good friend" of the defendants' counsel and am merely acquainted with him solely from his occasional appearance at trial over the years. It is the only basis for our interaction. I am able to unequivocally state that I can preside over this action with complete impartiality in fact and appearance with regard to each and every aspect of this action. Therefore, it is ordered that the plaintiffs' motion for recusal is denied.

22 NYCRR Part 221 provides the "Uniform Rules for the Conduct of Depositions." On this application, the defendants assert that the plaintiffs' counsel repeatedly violated those rules.

22 NYCRR §221.1 permits objections only with regard to those that would be waived if not interposed pursuant to CPLR Rule 3115. §221.1(a) provides in pertinent part:

"All objections made at a deposition shall be noted by the officer before whom the deposition is taken, and the answer shall be given and the deposition shall proceed subject to the objections and to the right of a person to apply for appropriate relief pursuant to Article 31 of the CPLR."

"Every objection raised during a deposition shall be stated succinctly and framed so as not to suggest an answer to the deponent...Except to the extent permitted by CPLR Rule 3115 or by this rule, during the course of the examination persons in attendance shall not make statements or comments that interfere with the questioning."

§221.2 requires a deponent to answer all questions except to preserve a privilege or right of confidentiality or when the question is plainly improper and would, if answered, cause significant prejudice to any person. That section specifically states: [*6]

"An attorney shall not direct a deponent not to answer except as provided in CPLR Rule 3115 or this subdivision. Any refusal to answer or direction not to answer shall be accompanied by a succinct and clear statement of the basis therefor."

The conduct at the plaintiff's deposition which precipitated this motion began in response to the defendants' counsel's inquiry regarding a notice of claim. As previously indicated, when shown the particular notice of claim, the plaintiff acknowledged his signature on the document.

"In that Notice of Claim, did you allege that there was an obstructed view of the intersection? Yes or no?"

"I will not allow him to answer that because what's in the Notice — there's no testimony that he's read it and knows what's in it, so there's no foundation for that question. What the document says and what he knows it says may be two different things."

"I know that. We're not supposed to say any of this. We can do it outside of the presence of the witness."

Mr. Genna's apparent objection to the question was that there was "no foundation." Mr. Genna's obligation pursuant to §221.1(a) was to make his objection and to permit the plaintiff to answer the question. It is significant to note that Mr. Genna's first response when the question was asked was not to object but to immediately direct his client not to answer, although there was no assertion of a permissible basis as set forth in §221.2. Mr. Genna compounded his error by not-so-subtly instructing his client as to the response that he should give. The defense counsel advised Mr. Genna of the impropriety of his directions to no avail. As the transcript unequivocally indicates, during the portion of the deposition at issue, Mr. Genna repeatedly directed his client not to answer; repeatedly interrupted the deposition; and repeatedly provided instructions in his statements as to how the witness should respond.

Even before the implementation of Part 221, the courts have consistently held that questions at depositions should be freely permitted and answered unless it clearly violates the witness' constitutional rights or some privilege recognized in law or is palpably irrelevant. (Freedco Products, Inc. V. New York Telephone Company, 47 AD2d 654 [2d Dept. 1975]; Walter Karl, Inc. v. Wood, 161 AD2d 704 [2d Dept. 1990].) The questions that were asked during the plaintiff's deposition did not fall into any of those categories. This Court has found guidance in an article authored by Harold Baer, Jr. and Robert C. Mead. The authors offer the following observation and advice with which the court concurs:

"The spirit of the Civil Practice Law and Rules is the spirit of free disclosure. Litigation is a search for truth. It is not a battle to the death; it is not a game of trickery and pretense; it is not a struggle for tactical advantage; it is not a means for resolving disputes based upon which side has more money. Justice under our rules is best served by open disclosure of the relevant facts, with broad scope for the parties to pursue their theories with a minimum of technicality but [*7]with concern for efficiency and the avoidance of duplication...There is inescapably some tension between the spirit of our rules and the tactical concerns of counsel...The attorney inclined to interpose objections should reflect on the spirit of the rules or at least understand them before doing so. It may be suggested that this spirit is no more than the stuff of pious Law Day speeches, but counsel may find out otherwise, for counsel ignores this at his or her peril. In our view, many of the disputes that emerge during depositions can be avoided or resolved by calm consideration of the overriding approach of the law to the litigation process." (The Conduct and Misconduct of the Deposition, 64-APR NYSTBJ 16 [March/April, 1992].)

I find that the conduct of the plaintiffs' attorney at the subject deposition not only failed to comport with the spirit of the Civil Practice Law and Rules, but violated the specific provisions of CPLR Article 31 and 22 NYCRR Part 221. Striking the plaintiffs' complaint as requested by the defendants is not an appropriate remedy under the circumstance since it would unfairly punish the plaintiffs for the conduct of their attorney. I find under the circumstances presented, at least in this first instance, that a monetary sanction sufficient to compensate defendants' counsel for the time expended and costs incurred as a result of the plaintiffs' counsel's conduct is an appropriate remedy. (O'Neill v. Ho, 28 AD3d 626, 627 [2d Dept. 2006].) Therefore, it is ordered that the defendants' motion is granted and the plaintiffs' counsel is directed to remit the sum of $2,500.00 directly to the defendants' counsel within thirty days of the date of this order. It is further ordered that the plaintiffs' counsel shall provide proof of payment to this Court within the same period. It is further ordered that plaintiff John Simmons will appear for a further deposition on or before October 12, 2007. The defendants' counsel shall provide written notice of the date, time and place for the deposition on or before September 6, 2007. No adjournments shall be granted without leave of the court.

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York