NAGEL v. Carlton Black Colquitt, “John and Jane Doe,” Respondent-Undertenants. (2009)

By notice of cross-motion dated January 15, 2009, the respondent seeks dismissal of the instant summary holdover proceeding, suppression/preclusion of certain examination before trial (“EBT”) transcripts, (CPLR § 3103(c)), and sanctions, (22 NYCRR § 130-1.1), due to the petitioner's counsel engaging in allegedly improper discovery.   This summary proceeding is based upon the petitioner's allegation that the respondent-tenant, Kenneth Grayson (“Kenneth”), does not primarily reside in the subject rent controlled apartment.   On April 11, 2007, the parties settled the petitioner's initial motion for discovery.   It was agreed that Kenneth and the respondent-undertenant, Carlton Colquitt (“Carlton”), who is seeking succession based upon nontraditional remaining family member status, would produce documents and appear for EBTs. During the course of the proceeding Kenneth died;  however, there still remained to be resolved, Carlton's succession claim.   During his EBT, Carlton testified that Kenneth's son, Jay, and daughter, Cecelia, possess information relevant to his succession claim.   Based on this, the petitioner, by notice of motion dated December 9, 2008 (“discovery motion”), sought leave of court to engage in discovery of these two individuals in the form of EBTs and document production.   The motion was served upon said individuals, and attached as exhibits were the proposed subpoena duces tecum and testificandum.   As with all such subpoenas, they included language warning the recipients that “failure to comply with this subpoena is punishable as a contempt of Court and shall make you liable to the person on whose benefit this subpoena was issued for a penalty and all damages sustained by reason of your failure to comply.”

In the petitioner's own memo-of-law in support of its discovery motion, it acknowledged that “discovery is generally thought of an (sic) antithetical to the purposes of a summary proceeding.”   The petitioner's counsel is correct and it is well established that EBTs, interrogatories, and most other discovery devices are not available as of right in summary holdover proceedings.   (Clark v. Kellog, N.Y.L.J., July 28, 1982, at 6, col. 1 [App. Term, 1st Dept.];  Joseph v. Stone, N.Y.L.J., June 19, 1985, at 6, col. 1 [App. Term, 1st Dept.];  NYU v. Farkas, 121 Misc.2d 643, 468 N.Y.S.2d 808 [Civ. Ct., N.Y. Cty. 1983];  Residential Landlord-Tenant Law In New York, Scherer, § 13:46, at 819 [2008-2009 Edition].)   Although disclosure is more freely granted in holdover proceedings, including disclosure as against non-parties, leave of court must first be obtained.  (CPLR 408;  Houston v. Zitin, 2001 N.Y. Slip Op. 40237(U), 2001 WL 1470310 [App. Term, 1st Dept. 2001];  Steele v. Acevedo, N.Y.L.J., March 28, 2002, at 21, col. 2 [App. Term, 1st Dept.];   Matter of Shore, 109 A.D.2d 842, 486 N.Y.S.2d 368 [2nd Dept. 1985].)   Of course, there is nothing precluding the petitioner's counsel from initially attempting to contact non-parties to determine whether it is even worthwhile to seek an EBT and/or document production of said individuals.   But it is paramount that once the decision is made to engage in discovery, leave of court must first be obtained.   Requiring an order for disclosure preserves the summary nature of these proceedings, (NYU v. Farkas, 121 Misc.2d 643, 468 N.Y.S.2d 808, supra ), and permits the court to structure discovery orders in such a way that the interests of all parties are safeguarded.

The petitioner's discovery motion was returnable December 18, 2009, and according to the petitioner's counsel:

within a few days of service of the motion, Mrs. Grayson (wife of Mr. Jay Grayson) initiated contact with your affirmant and called asking for further information regarding the motion ․ Mrs. Grayson informed your affirmant that her husband would have no objection to voluntary (sic) appear at the office of your affirmant and provide information as to the relationship between [Kenneth] and [Carlton] ․ [at Mrs. Grayson's suggestion] your affirmant contacted [Cecelia who] informed your affirmant that she would have no objection to [likewise] voluntary (sic) appear.1

According to Cecelia's affidavit dated January 9, 2009:

before the motion was heard I received a phone call from the Petitioner's law firm ․ wherein I was ․ to appear for a deposition at their firm and that I can forgo court attendance if I would appear at their office for the recorded examination.   I am not really familiar with court procedure and, as such, in order to save time, avoid penalty or problems with the law I went to the attorney's office as I was told to do and answered an in-depth set of questions asked by [petitioner's counsel] with a stenographer present.

On December 15, 2008, the petitioner's counsel contacted the respondent's counsel via e-mail seeking to adjourn the discovery motion, and both agreed to an adjournment date of January 27, 2009.   There was no discussion regarding the recent communication between the petitioner's counsel, Mrs. Grayson and Cecelia.   On December 19, 2008, Cecelia “appear[ed] in the office of Petitioner's (sic) counsel and answer[ed] a number of questions concerning the relationship of [Kenneth] and [Carlton] before a stenographer.”   Although it is obvious from the papers that an EBT of Jay was also undertaken, information regarding same, including the date, was not disclosed by the petitioner's counsel.   The respondent's counsel never received notice of the EBTs, and to date, the transcripts have not been produced.   On December 30, 2008, the petitioner's counsel notified the respondent's counsel that they will be withdrawing their discovery motion.   Ultimately, the respondent's counsel learned of the EBTs from his client, and on January 5, 2009, notified the petitioner's counsel via e-mail that this conduct was sanctionable.   That same day, the petitioner's counsel replied that his “actions (while admittedly clever and shrewd) were wholly legal and in accord with proper practice.”

In support of his cross-motion, the respondent cites the Appellate Term, First Department case of Henriques v. Boitano, 6 Misc.3d 129(A), 2000 WL 34492223, which also involved the petitioner's law firm.   There the Appellate Term found that the nonparty subpoenas issued by petitioner's counsel violated familiar and fundamental procedural rules since they were served without notice.   It held that petitioner's counsel chose to chart a course which it knew to be at variance with acceptable discovery practice, and suppressed the covertly obtained documents.   Moreover, the Appellate Term held that it was not an abuse of discretion for the trial court to “impose sanctions for frivolous conduct ․ particularly given the unassailable record showing that counsel had previously engaged in and been admonished for similar discovery abuses.”   The respondent's counsel also cites Brussels v. Henne, 174 Misc.2d 535, 664 N.Y.S.2d 905 [Supreme Court, Queens Cty. 1997], which also involved the petitioner's law firm.   There the Supreme Court held that “counsel's use of subpoenas was a blatant disregard of the rules.   No notice was given to the named parties ․ and no application was made pursuant to CPLR 3120(b), as is required.”   The court then adjourned the action to afford the parties “a reasonable opportunity to he heard as to the nature, amount and scope of any award of costs or imposition of sanctions.”

The conduct by the petitioner's counsel was a complete aberration of rudimentary principles of discovery with the context of a summary proceeding.   as already noted, and readily admitted by the petitioner's counsel in his memo-of-law dated December 9, 2008, it is well established and a fundamental principal in summary holdover proceedings that leave of court must first be obtained before engaging in disclosure against parties and non-parties.  (CPLR 408;  Houston v. Zitin, 2001 N.Y. Slip Op. 40237(U), supra; Steele v. Acevedo, N.Y.L.J., March 28, 2002, at 21, col. 2, supra;   Matter of Shore, 109 A.D.2d 842, 486 N.Y.S.2d 368, supra.)   The petitioner's counsel clandestinely deposed two non-party witness to this summary holder proceeding, and is now in possession of improperly obtained evidence. Mere suppression, (CPLR § 3103(c)), in no way assures that the tainted information obtained by design will not be used by the petitioner's counsel to derive any further benefit.   While the information obtained may be relevant, and the court may have granted discovery of these non-party witnesses, the respondent's counsel opportunity to object (and potentially appeal any negative decision) and the court's primary role of ruling on these issues were usurped by the petitioner's counsel.   The conduct engaged in by the petitioner's counsel exhibited a complete and deliberate disregard for the process by which discovery in a summary holdover proceeding is to be conducted, and this type of abuse cannot be countenanced.   Ultimately, this court must preserve the integrity of obtaining disclosure in summary proceedings, and any sanction short of disqualification would treat the conduct at hand with a degree of lenity practically inviting it recurrence.

Therefore, based on the aforementioned, the respondent's cross-motion is granted to the extent of suppressing the EBT transcripts of Cecelia and Jay, awarding the respondent reasonable attorney fees for the instant cross-motion,² and disqualifying the petitioner's firm, Kucker & Bruh, LLP. The proceeding will remain off calendar for at least 45 days so as to allow the petitioner an opportunity to obtain new counsel.   This decision is without prejudice to the petitioner's new counsel properly seeking discovery as against these non-party witnesses.

This constitutes the decision and order of this court, copies of which are being mailed by the court to the parties.

FOOTNOTES

1.   During oral argument, the court asked the petitioner's counsel whether it would have been more prudent for counsel to suggest to these nonparty witnesses that they appear in court on the discovery motion return date and advise the court that they would consent to discovery.   Counsel was adamant that once the nonparty witnesses agreed to the EBT, leave of court was no longer necessary.

2.   The amount of reasonable attorney fees shall be determined at the conclusion of the proceeding.

JOSEPH E. CAPELLA, J.