ARGER MEDINA v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY

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Victorialee ARGER–MEDINA and Dax Medina, Plaintiffs, v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Port Authroity Police Department and Peter Speciale, Defendants.

Decided: September 28, 2017

Lerner, Arnold & Winston, LLP, by James M. O'Connor, Esq., for Plaintiff. Port Authority of New York and New Jersey & Port Authority Police Department Cheryl Alterman, Esq., for Defendant. Officer Speciale—Segal, McCambridge, Singer & Mahoney by Andrew W. Dean, Esq., for Defendant.

The following papers were considered in reviewing plaintiffs' motion to strike co-defendant Peter Speciale's answer and co-defendant Peter Speciale's cross-motion for a stay:

Upon the foregoing papers, plaintiffs' motion to strike is denied in part and granted in part, and defendant Peter Speciale's cross-motion for a stay is denied in its entirety for the reasons set forth herein.

The instant action arises from a motor vehicle accident that occurred on May 18, 2015. Plaintiff VICTORIALEE ARGER–MEDINA alleges that co-defendant Peter Speciale (hereinafter “Officer Speciale”), a Port Authority Police Department officer, was operating the motor vehicle that struck her vehicle causing her to sustain personal injuries. Plaintiff DAX MEDINA, the spouse of Victorialee Arger–Medina, is also a party to this action and is claiming loss of services. Plaintiffs sued the Port Authority of New York and Jersey, the Port Authority Police Department (hereinafter the “Port Authority”), and Officer Speciale, individually. Subsequent to and as a result of the subject accident, the New York County District Attorney's Office commenced an investigation relative the accident, however, same was closed by the District Attorney's Office. Therefore, currently, there are no pending criminal actions against Officer Speciale. However, sometime in 2016, the Port Authority commenced an internal disciplinary proceeding against Officer Speciale and a determination remains pending.

On April 13, 2016, this Court issued a Preliminary Conference Order directing, inter alia, that plaintiffs and Officer Speciale appear for an examination before trial on or before August 4, 2016. In his opposition papers, Officer Speciale alleges that the depositions were not conducted because plaintiff Victorialee Arger–Medina failed to provide HIPAA authorizations pursuant to the April 13, 2016 order. On September 27, 2016, this Court issued a Compliance Conference Order again directing that plaintiffs and Officer Speciale appear for an examination before trial by certain dates, which again were not conducted allegedly due to a surgical procedure that plaintiff Victorialee Arger–Medina had to undergo. After a second compliance conference was held on March 10, 2017, plaintiffs' depositions were ultimately taken and the parties agreed that Officer Speciale's deposition was to be conducted on July 13, 2017. According to plaintiffs, on July 12, 2017, Officer Speciale's attorneys informed them that they were not going to produce Officer Speciale due to the pending disciplinary proceeding brought by the Port Authority.

Plaintiffs now move for an Order pursuant to CPLR § 3126 striking Officer Speciale's answer, or in the alternative, for an Order pursuant to CPLR § 3124 compelling Officer Speciale to appear for an examination before trial on a date certain and extending the time in which a Note of Issue must be filed.

In his cross-motion, Officer Speciale argues that this Court should issue an Order pursuant to CPLR § 2201 granting a stay of this action pending the resolution of the disciplinary proceeding against Officer Speciale, or in the alternative, an Order pursuant to CPLR § 3103 granting a protective order denying, limiting, conditioning or regulating the use of the deposition of Officer Speciale, or in the alternative, an Order pursuant to CPLR § 3104 appointing a referee to supervise the deposition of Officer Speciale and address any privileged objections. Officer Speciale argues that he will be highly prejudiced if a stay of the instant action is not issued as the stay is necessary in order to protect his rights under the collective bargaining agreement between himself and the Port Authority. It is undisputed that said agreement provides that Officer Speciale, as an employee of the Port Authority, is not required “to give any evidence against himself in connection with the investigation of an alleged act of misconduct on his part.” Thus, Officer Speciale contends that a deposition in the instant civil action may produce “self-incriminatory” evidence, which will then be used against him by the Port Authority in the pending disciplinary proceeding.

Discussion

CPLR § 3126 provides, inter alia, that if a party to an action refuses to obey an order for disclosure, the Court may issue an Order striking out the party's pleadings. “While actions should be resolved on the merits when possible, a court may strike an answer upon a clear showing that the defendant's failure to comply with discovery demands or court-ordered discovery was the result of willful and contumacious conduct.” (Ozeri v. Ozeri, 135 AD3d 838 [2nd Dept 2016]; Gillen v. Utica First Ins. Co., 41 A.D.3d 647, 839 N.Y.S.2d 155 [2nd Dept 2007] ). “The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse.” (Id. citing to Commisso v. Orshan, 85 A.D.3d 845, 925 N.Y.S.2d 612 [2nd Dept 2011] ).

Upon a review of this Court's file and after oral argument, this Court denies plaintiffs' branch of the motion requesting an Order to strike Officer Speciale's answer. While it is undisputed that there was many delays in complying with various Court orders, the delays were not solely attributable to Officer Speciale. During oral argument, plaintiffs' attorney acknowledged that the completion of the parties' scheduled depositions (except for the last adjourned date of July 13, 2017) were either delayed due to plaintiff Victorialee Arger–Medina's medical needs or were adjourned on consent. Thus, plaintiffs have failed to show that Officer Speciale's failure to comply with discovery demands or court-ordered discovery was the result of willful and contumacious conduct.

Furthermore, while this Court is cognizant of its authority and discretion under CPLR § 2201 to “grant stay of proceedings in a proper case, upon such terms as may be just”, this Court does not agree with Officer Speciale that a stay is warranted under the facts underlying this action. While there is no precedent on whether a stay in a civil proceeding is warranted when there is a pending disciplinary proceeding against a co-defendant, there is abundant case law that speaks on the analogous issue in the context of when there is a civil case and a criminal action pending that deal with the same occurrence or event. In said context, “the law is clear that a court is not required to stay a civil action until a pending related criminal prosecution has been terminated so that a party can avoid the difficulty of choosing between presenting evidence in his or her own behalf and asserting his or her Fifth Amendment rights.” (Campbell v. New York City Tr. Auth., 32 A.D.3d 350, 352, 821 N.Y.S.2d 27 [1st Dept 2006] ). “The assertion of the privilege against self-incrimination is an insufficient basis for precluding discovery [in a civil action]”. (Fortress Credit Opportunities I LP v. Netschi, 59 A.D.3d 250, 873 N.Y.S.2d 562 [1st Dept 2009] ).

In the instant matter, there is no criminal action pending. In fact, it appears unlikely that Officer Speciale will face criminal prosecution in light of the fact that the New York County District Attorney's Office already conducted an investigation and decided to not prosecute the matter. Thus, while there is a disciplinary proceeding pending against Officer Speciale and, pursuant to a contract between himself and the Port Authority, he has a right to not self-incriminate himself in said proceeding, same is not a basis to stay the instant proceeding. A stay in this matter would cause undue prejudice to the plaintiffs, whom are not a party to or in any way involved with the pending disciplinary proceeding, especially given that the investigation commenced in 2016 and it is uncertain and unclear as to when a determination will be made by the Port Authority with respect to the investigation.

In the alternative, Officer Speciale seeks an Order pursuant to CPLR § 3103 granting a protective order denying and/or limiting the use of the deposition of Officer Speciale by the Port Authority. Specifically, Officer Speciale argues that this Court should issue a protective order denying plaintiff's right to depose him, or, that in the event that this Court orders a deposition, that the Port Authority should be prohibited from using the testimony given in the instant civil matter in its disciplinary proceeding because of the possibility of self-incriminatory evidence that may be given by him at the deposition. However, this Court is unwilling to grant said request. In Lloyd v. Catholic Charities of the Diocese of Albany, 23 A.D.3d 783, 803 N.Y.S.2d 739 [3d Dept 2005], the Court held that in a “civil action related to stabbing, defendant was not entitled to [a] protective order precluding his deposition to preserve his privilege against self-incrimination, even though his appeal from criminal conviction related to [the] stabbing was pending and he was considering a motion for post-conviction relief.” Thus, even in light of the fact that there is a pending disciplinary proceeding against Officer Speciale, which this Court deems to be of less severity than facing a possible criminal conviction, Officer Speciale is not entitled to a protective order to preclude the taking of his deposition. Plaintiff, who again is not involved in the disciplinary proceeding, is entitled to discovery and this Court does not discern a compelling reason for delaying the process.

This Court notes that the law under CPLR § 4501 does grant Officer Speciale protection against self-incriminating himself. Pursuant to CPLR § 4501, a witness is not required to give an answer which will tend to accuse him of a crime or to expose him to a penalty or forfeiture. This protection against self-incrimination does not only apply to the trial of a civil matter, but also applies to the pretrial stages, including examinations before trial. (7 Carmody–Wait 2d § 42:140, citing to Gullo v. Courtright, 62 Misc.2d 721, 309 N.Y.S.2d 735 [Monroe County Court] ). Therefore, a litigant retains the privilege against self-incrimination during a civil deposition, but that is not a basis for precluding discovery. (Id.)

Accordingly, this Court hereby grants plaintiffs' instant motion only to the extent that this Court orders that Officer Speciale appear and answer questions at an examination before trial within forty-five (45) days of this Order. However, given that Officer Speciale is under an investigation that may lead to a penalty and/or forfeiture with respect to his current employment, CPLR § 4501 applies, and therefore Officer Speciale is entitled to rely on the privilege against self-incrimination and to refuse on that ground to answer questions put to him where the danger of self-incrimination exists. (See Lloyd v. Catholic Charities of the Diocese of Albany, supra; see also Access Capital, Inc. v. DeCicco, 302 A.D.2d 48, 51, 752 N.Y.S.2d 658 [1st Dept 2002] ). However, this Court emphasizes that Officer Speciale may only assert the privilege when he reasonably perceives a risk from answering a particular question posed during the deposition. (Emphasis Added ). Lastly, this Court determines that the appointment of a referee pursuant to CPLR § 3104 is unnecessary to supervise the deposition as no unusual circumstances has been shown by Officer Speciale to warrant said relief as the parties may seek judicial intervention to address any privileged objections.

Conclusion

For the foregoing reasons, it is hereby

ORDERED that Officer Speciale appear for a deposition within forty-five (45) days of this Order; and it is further

ORDERED that plaintiffs' time to file a Note of Issue is hereby extended and plaintiff shall file same within sixty (60) days after the deposition of Officer Speciale is taken; and it is further

ORDERED that plaintiffs' attorney shall serve a copy of this order with notice of entry upon defendants' attorneys by overnight mail within ten (10) days of entry.

This constitutes the Decision and Order of this Court.

ARMANDO MONTANO, J.

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