Opinion
Index No. 504935/2022
08-09-2023
MELISSA SILLA, Plaintiff, v. THOMAS SILLA, JR., Defendants.
Unpublished Opinion
At a Matrimonial Term, Part 5Z, of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse thereof, 360 Adams Street, Brooklyn, New York, on the 9th day of August, 2023.
PRESENT: CHERYL J. GONZALES, J.S.C.
DECISION AND ORDER
CHERYL J. GONZALES, J.S.C.
Recitation, as required by C.P.L.R. § 2219 (a), of the papers considered in the review of these motions.
Papers
Numbered
Plaintiff's Notice of Motion, Affidavit
NYSCEF Doc. # 107 - 108
Defendant's Notice of Cross Motion, Affirmation
NYS CEF Doc # 111,113 114
Plaintiffs Affidavit in Opposition
NYSCEF Doc . # 116
Defendant's Affirmation in Reply
NYSCEF Doc. # 122
Exhibits
NYSCEF Doc. # 109 - 110; 112;115; 117-121; 123
Upon the foregoing cited papers, and all prior proceedings, in this plenary action, the decision and order on these motions are as follows:
Plaintiff, Melissa Silla, pro se, commenced this plenary action on February 17, 2022 upon filing a Summons and Complaint in which Plaintiff requested an order enforcing the terms of the parties' separation agreement. Defendant, Thomas Silla, Jr., appeared by counsel and interposed a Verified Answer with Counterclaims on March 14, 2022. Plaintiff interposed an Answer to Defendant's Counterclaims on April 12, 2022.
Plaintiff moved by Order to Show Cause on May 23,2023 seeking an Order (1) sanctioning Defendant and precluding him from taking Plaintiffs deposition; (2) granting Plaintiff fees associated with the filing of the instant motion, and (3) granting such other and further relief the court deems just and proper.
Plaintiff .asserts that Defendant did not. give her proper notice of the deposition date which he could have done anytime after April 17, 2023. Plaintiff argues that Defendant's lack of proper notice is a violation of CPLR § 3107. In addition, Plaintiff requests costs and fees that she has incurred as a result of having to bring this motion.
Defendant cross-moved for an Order (1) precluding Plaintiff from offering any testimony regarding the within proceeding pursuant to CPLR § 3126 due to her failure to attend the court ordered deposition on May 23, 2023; (2) deeming Plaintiffs right to depose Defendant waived due to her failure to abide by the terms of the Compliance Conference Order; (3) sanctioning Plaintiff in the sum of $5,000.00 for frivolous conduct pursuant to NYCRR § 130; and (4) for such other, further and different relief as to this Court is just and proper.
In support of his cross-motion, and in opposition to Plaintiff s motion. Defendant asserts that pursuant to the Compliance Conference Order, Plaintiffs deposition was to be taken on or before May 23, 2023. In addition, Defendant's deposition was to be taken on or before May 25, 2023. Defendant's counsel stated that he did not hear from Plaintiff and he sent an email on May 22, 2023 scheduling her deposition to take place on May 23, 2023. According to Defendant, Plaintiff refused to attend the deposition.
Defendant contends that Plaintiffs actions constitute frivolous behavior and requests the sum of $5,000.00 as counsel fees for her refusal to appear at the deposition and for Defendant having to bring this motion. Defendant believes that Plaintiff would have been able to take off from work had she given notice to her employer. Moreover, Defendant states that Plaintiff has a history of failing to comply with court orders. Further, Defendant states that Plaintiffs reliance on CPLR § 3107 is misplaced.
In addition, Defendant states that Plaintiff has not contacted Defendant to schedule Defendant's deposition. According to Defendant, Plaintiff should have contacted Defendant on or before May 5,2023 regarding the scheduling of Defendant's deposition, since she believes that CPLR § 3107 required Defendant to provide her with 20 days' notice of the scheduling of his deposition. Defendant argues that Plaintiffs failure to schedule Defendant's deposition should be deemed a waiver of her right to depose Defendant. Further, Defendant States that Plaintiff should be precluded from offering any testimony in this matter as a result of her failure to attend her scheduled deposition.
In opposition to Defendant's cross-motion, Plaintiff states that Defendant is in violation of CPLR §3107 as he first notified Plaintiff of the deposition on May 22, 2023 at 10:46am, which barely provided her with 24 hours' notice. Plaintiff stated that due to Defendant's untimely notice, and a staffing issue at her place of employment, she was unable to take off from work. Plaintiff argues that if she would have received appropriate notice pursuant to the CPLR, she would have been able to appear. Plaintiff argues that the CPLR is clear that 20 days' notice of a deposition is required. While the Compliance Conference Order provided the language, "on or before," last minute notice: should not be acceptable, and Plaintiff should not be blamed.
In addition, Plaintiff states that it is Defendant's actions which have proven to be frivolous pursuant to NYCRR § 130. Plaintiff states that Defendant has prolonged this action by failing to abide by court orders, deadlines and by appealing Orders in this matter. Moreover, Plaintiff argues that Defendant's cross-motion is untimely pursuant to CPLR § 2214 (b) as the cross-motion should have been served on or before May 30,2023, and not 3 days prior to the hearing date.
In reply to Defendant's cross-motion, Defendant states that Plaintiffs actions are both frivolous and disingenuous. Defendant states that Defendant has not been found to be non-compliant with any Order of the court, other than the decision issued by Justice Quinones which is being appealed. Defendant states that in his experience, it is unlikely that Plaintiff would have been denied a request to take off one day from work so she could attend tire deposition and the totality ofher actions in this matter have been insincere.
The branches of both Plaintiff s motion and Defendant's cross-motion related to the waiver of the parties' right to depose each other were resolved by the court's Order dated June 8, 2023. Depositions of both Plaintiff and Defendant were scheduled for July 11, 2023. In addition. Plaintiff was ordered to let Defendant's counsel know on or before June 30, 2023 whether she intended to depose Defendant.
Regarding Plaintiffs claim that Defendant's cross-motion is untimely, it should be noted that CPLR § 2215 provides that "at least three days prior to the time at which the motion is noticed to be heard, a party may serve upon the moving party a notice of cross-motion demanding relief" Plaintiff noticed her motion to be heard on June 8, 2023 and Plaintiff admits to being served with Defendant's cross-motion three days prior to the date her motion was scheduled to be heard.
Defendant requests an Order precluding Plaintiff from offering any testimony in this proceeding due to her failure to attend the scheduled deposition. Pursuant to CPLR §3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party "refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed". Mahgoub v 880 Really, LLC, 150 A.D.3d 1216, 1218-1219, 56 N.Y.S.3d 215 [2d Dept., 2017] (see also Aha Sales, Inc. v Creative Bath Prods., Inc., 110 A.D.3d 1019, 1019, 973 N.Y.S.2d 791 [2013], quoting CPLR § 3126).
Willful and contumacious conduct may be inferred from a party's "repeated failure to respond to discovery demands or comply with court-ordered discovery, coupled with an inadequate explanation for these failures, or the failure to comply over an extended period of time with court-ordered discovery'' (Gafarova v Yale Realty, LLC.. 174 A.D.3d 862, 863, 106 N.Y.S.3d 122 [2d Dept., 2019] see Williams v Suttle, 168 A.D.3d 792, 91 N.Y.S.3d 447 [2019]; Candela v Kantor, 154 A.D.3d733, 734, 64N.Y.S.3d 36 [2017]).
In the instant case, both parties make general statements regarding the other party's inability to abide by court orders. However, neither party provided evidence to substantiate these claims. Therefore, the court cannot rule on the issue of either parties alleged "'repeated failure to respond to discovery demands or comply with court-ordered discovery."
Regarding the party depositions, it should be noted that Pursuant to Section IV of the Compliance Conference Order dated April 17, 2023, Plaintiff s deposition was scheduled to take place on or before May 23, 2023, and Defendant's deposition was scheduled to take place on or before May 25, 2023. It is clear that based upon the plain language in the Compliance Conference Order, Plaintiff was, expected to be deposed on May 23, 2023 or before May 23, 2023 and Defendant was expected to be deposed on May 25, 2023 or before May 25, 2023 (emphasis added). The: Compliance Conference Order was dated April 17, 2023, and depositions of either party could have taken place on any date between April 17, 2023 and the deadlines outlined in the Compliance Conference Order.
However, the deadline listed in the Compliance Conference Order was a deadline agreed upon by the parties; it was not notice to the party that their depositions would take place on that date. The clear language in the Compliance Conference Order includes language which states "on or before." The meaning of "on or before" provides that the depositions could take place prior to the deadlines in the Order or on the date of the deadline. Though, without notice, neither party would know of the exact date and time of when the deposition would take place, or if any deposition would take place at all.
Defendant's argument that the Compliance Conference Order provided the date on which Plaintiff should have known the deposition would take place is unavailing. The Compliance Conference Order did not include the time at which the deposition would take place on May 23, 2023. Moreover, according to Defendant, he sent an email to Plaintiff on May 22, 2023 only after not hearing from her. It was Defendant's responsibility to provide reasonably sufficient notice to Plaintiff of his intention to schedule her deposition; it was not Plaintiff's responsibility to reach out to him first. Further, Defendant only sent an email on May 22, 2023 scheduling Plaintiff s deposition on the date of May 23, 2023. However, Defendant's notice to Plaintiff of his intention to depose her only gave her 24 hours' notice which made her attendance impracticable as she was unable to take off from work last minute. This Court does not find that Plaintiff refused to attend the deposition and does not credit Defendant's position that Plaintiff should have been able to take off from work. Therefore, Defendant's request for an Order precluding Plaintiff from offering any testimony in this proceeding for failure to attend the scheduled deposition is denied.
Plaintiff's reliance on CPLR § 3107 as requiring 20 days' notice is misplaced. While CPLR § 3107 does provide that "a party desiring to take the deposition of any person shall give to each party twenty days' notice", this section is relevant to non-party individuals who are to be deposed (see Lyons v. New York City Econ. Dev. Corp., 2021 NY Slip Op 31670 (U), 7 [Sup Ct., New York County, 2021]). However, CPLR § 3107 does provide that a party giving notice to another party should provide at least 10 days' notice of the deposition, which was not given in this case.
Plaintiff requests sanctions for Defendant's frivolous conduct. Defendants also requests an Order sanctioning Plaintiff in the sum of$5,000.00 for her frivolous conduct.
Pursuant to Part 130 of the Uniform Rules for the New York State Trial Courts, a court may award costs and impose sanctions for frivolous conduct in a civil action or proceeding. 22 NYCRR § 13 0-1.1 [a]). Conduct is considered frivolous if (1) 'it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law," (2) "it asserts material factual statements that are false," or (3) if it is undertaken to "delay or prolong the resolution of the litigation, or to harass or maliciously injure another" 22NYCRR § 130-1.1[c].
When determining whether conduct is frivolous and sanctionable, a court must "consider the circumstances under which the conduct took place", and "whether or not the conduct was continued when its lack of legal or factual basis was apparent or should have been apparent" 22 NYCRR § 130-1.1 [c]. Sanctions may be awarded only upon a written decision setting forth "the conduct on which the award or imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate" (Holloway v. Holloway, 260 A.D.2d 898, 688 N.Y.S.2d 809 [3d Dept. 1999], citing 22 NYCRR 130-1.2). It must also be noted that "the sanction imposed should be substantial enough to serve as a deterrent to dilatory behavior in the future" Sarabella v. Nappo, 5 Mise. 3d 1019(A), 1019A, 799 N.Y.S.2d 164 [Sup Ct., Suffolk County, 2004] see also Lichter v. State, 198 A.D.2d687, 689, 603 N.Y.S.2d 644 [3d Dept. 1993]; see Siegel, Practice Commentaries, McKinney's Cons Law of NY, Book 7B, CPLR C3216:6. at 637).
In determining if sanctions are appropriate, the court must look at the "broad pattern" of conduct by the offending attorneys or parties (Levy v Carol Mgt. Corp., 260 A.D.2d 27, 33, 698 N.Y.S.2d 226 [ 1 st Dept 1999]).
The court does not find that ail award of sanctions to either of the parties is warranted in this case. The court does not find that Plaintiffs absence from Defendant's scheduled deposition constitutes willful and contumacious conduct. In addition, the court does not find that Defendant's short notice to Plaintiff was done in an effort to delay or prolong the resolution of the litigation, or to harass or maliciously injure Plaintiff.
Plaintiff s request for fees associated with the filing of her motion is granted. Defendant's failure to provide timely notice of the scheduled deposition, coupled with Plaintiffs inability to attend the deposition due to receiving last minute notice, provided Plaintiff with no choice but to file the instant motion. Therefore, Plaintiff is awarded $45.00 in costs.
It should be noted that Plaintiff contacted chambers via email on May 23, 2023 at 9:44am in which she requested a telephone conference with the court to discuss the alleged untimely notification of her deposition. The court timely responded at 10:09am requesting confirmation of an available time to hold the telephone conference that day. Both Plaintiff, Defendant's counsel and the court engaged in a few emails and the telephone conference was scheduled for May 23, 2023 at 3:00pm. However. Plaintiff had already filed her motion on May 23, 2023 at 9:34am and requested relief from chambers only after already filing her motion.
In accordance with the foregoing, it is hereby:
ORDERED that Plaintiff s Motion (motion sequence no. 7) is granted to the extent provided in this decision and order, and it is further
ORDERED that Defendant shall pay the sum of $45.00 directly to Plaintiff within 30 days of the date of this Decision and Order; and it is further
ORDERED that Plaintiffs request for an Order sanctioning Defendant is denied; and it is further
ORDERED that Defendant's Cross-Motion (motion sequence no. 8) is denied.
This constitutes the decision and order of the court.