Supreme Court, Appellate Division, First Department, New York.Feb 16, 2012
938 N.Y.S.2d 538 (N.Y. App. Div. 2012)
938 N.Y.S.2d 53892 A.D.3d 5262012 N.Y. Slip Op. 1175


Eli WEINSTEIN, et al., Plaintiffs–Appellants, v. Michael GINDI, Defendant–Respondent.

The Law Offices of David Carlebach, Esq., New York (David Carlebach of counsel), for appellants. Heller, Horowitz & Feit, P.C., New York (Martin Stein of counsel), for respondent.

The Law Offices of David Carlebach, Esq., New York (David Carlebach of counsel), for appellants. Heller, Horowitz & Feit, P.C., New York (Martin Stein of counsel), for respondent.


Judgment, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered October 29, 2009, in favor of defendant on his counterclaims and against plaintiff Eli Weinstein in the aggregate amount of $3,961,792.14, and dismissing the claims asserted by Weinstein, unanimously affirmed, without costs. Judgment, same court and J.H.O., entered June 2, 2010, dismissing the claims asserted by plaintiff Pine Projects LLC and bringing up for review an order, same court and J.H.O., entered June 2, 2010, which, inter alia, granted defendant's motion for summary judgment dismissing Pine Projects' complaint, unanimously reversed, on the law, without costs, the motion denied and Pine Projects' claims reinstated.

The motion court providently exercised its discretion in striking plaintiff Weinstein's pleading and dismissing his claims based on his willful refusal to appear for deposition in this action (CPLR 3126; Fish & Richardson, P.C. v. Schindler, 75 A.D.3d 219, 220, 901 N.Y.S.2d 598 [2010] ). Weinstein commenced the action in New York County and was ordered to appear for deposition by August 5, 2009. Depositions of parties to an action are generally held in the county where the action is pending; if a party demonstrates that conducting his deposition in that county would cause undue hardship, the Supreme Court in its exercise of discretion can order the deposition to be held elsewhere ( Yu Hui Chen v. Chen Li Zhi, 81 A.D.3d 818, 818, 916 N.Y.S.2d 525 [2011]; CPLR 3110).

Here, however, Weinstein was capable of coming to New York to be deposed without undue hardship. He simply refused to enter New York because a warrant for his arrest had been issued upon his contempt in an unrelated action. Thus, due to his self-imposed problems, Weinstein willfully disregarded the Court's order to appear in this State for deposition by August 5, 2009. The fact that Weinstein refused to enter New York because he feared being arrested does not establish a hardship warranting relocation of the deposition out of state, such as in Yu Hui Chen, 81 A.D.3d at 819, 916 N.Y.S.2d 525, where plaintiff established that traveling from China to the United States caused an undue hardship, and Wygocki v. Milford Plaza Hotel, 38 A.D.3d 237, 831 N.Y.S.2d 381 [2007], where the 76–year–old plaintiff, resident of Northern Ireland, submitted a sworn letter from her doctor identifying her many physical ailments and advising that traveling to New York could cause her further serious health problems.

The October 29, 2009 judgment awarding defendant damages on his counterclaims properly included an award of $1.5 million that was based on a loan defendant made to Weinstein. Defendant, who was the only witness at the inquest, testified that the loan was never repaid, and that although Weinstein had written him a letter in which he agreed to assign an interest in a company to satisfy the loan, the assignment was never effectuated.

Defendant is not entitled to judgment as a matter of law against plaintiff Pine Projects' because he failed to include his answer with his motion for summary judgment as required by statute ( see CPLR 3212[b] ). It is well settled that the failure to attach all of the pleadings is a fatal procedural defect requiring denial of a motion for summary judgment ( see e.g. Hamilton v. City of New York, 262 A.D.2d 283, 691 N.Y.S.2d 108 [1999]; Krasner v. Transcontinental Equities, 64 A.D.2d 551, 407 N.Y.S.2d 625 [1978] ).

In any event, even assuming that defendant had otherwise met his prima facie burden on the motion, Pine Projects' opposition was sufficient to raise a triable issue of fact ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). In particular, Simcha Shain, a 50% owner of Pine Projects, testified that Pine Projects routinely used nominees for its projects, that all of the properties in the complaint were owned by Pine Projects, that defendant acted merely as nominee with respect to all of the properties in the complaint, including Pine Projects, and that Weinstein funded all of the projects. In addition, Shain's affidavit, submitted at the request of the court, was sufficient to rebut Weinstein's testimony and asset list submitted in another pending action.

Plaintiffs' argument that the motion court improperly denied their motion to renew and reargue the October 29, 2009 judgment is not properly before this Court as plaintiffs failed to file a notice of appeal relating to that judgment.

We have considered plaintiffs' remaining arguments and find them unavailing.