STATE OF NEW YORK

SUPREME COURT : COUNTY OF CHAUTAUQUA

_____________________________________

JAMES E. CAFLISCH, as Executor and

on behalf of the Estate of HELEN S.

CAFLISCH,

Plaintiff Index No. H09693

vs


BRIAN D. WALKER,

Defendant

_____________________________________


CHARLES EDWARD FAGAN, ESQ.

for Plaintiff


BURGETT & ROBBINS

(Kenneth M. Lasker,

Esq. of Counsel) for

Defendant



DECISION AND ORDER



GERACE, J.


Plaintiff's counsel terminated the deposition of defendant after he refused to answer a question whether he had sexual relations with decedent (beyond that he did not remember); he had admitted he had a romantic attachment, but, could not remember whether he had sex with her.


Defendant's counsel interrupted a repeat of the question on the ground it had been answered; that he was refusing to allow plaintiff's counsel "not to accept his answer". Defendant was wrong, the question was appropriate.


Counsel for defendant had no authority to direct defendant not to answer. See SPATTS VS. WIDE WORLD TRAVEL SERVICE, 1st Dept, 70 AD2d 835. Counsel for plaintiff had no right to refuse to continue with the deposition even if the question defendant refused to answer was appropriate.


Plaintiff moved for an order precluding defendant from offering testimony or proof at trial and/or for an order compelling defendant to attend a Court supervised deposition. Defendant cross moved for sanctions, costs, attorney fees and dismissal of the motion.


Plaintiff is suing for breach of contract, fraud and

overreaching against decedent when she was a 66 year old widow. The executor contends defendant, some 16 years younger than decedent, romanced and defrauded decedent out of money and property.


This situation is nearly identical to Marine Bank vs. G. Read Woodworth, Index H03779, Chautauqua County Supreme Court, decided June 29, 1992, wherein this Court held that a "walk-out" by counsel in the middle of a deposition was unacceptable. See Siegel, New York Practice, Section 356; CPLR Section 3113(b).


Plaintiff's counsel should have gone as far as he could,

permitted any other scheduled depositions of other parties to

take place, and then taken legal action. Marine Bank, Supra.


Defendant's counsel was clearly wrong in refusing to have his client answer a question relevant to the issues in this case. Had counsel for plaintiff allowed the depositions for that day to proceed, then defendant's counsel would have had to answer to the Court for his conduct.


After argument on the motions, the Court issued a bench decision denying plaintiff's motion for preclusion and granting his motion for a court supervised deposition which the Court expanded to include all parties, and awarded defendant $250 in counsel fees and $25.00 in costs.


Subsequent to the bench decision, the case of BRESLAW vs BRESLAW, 2nd Department, DD 7672n, November 28, 1994 NYSlipOp 10218 came to the attention of this Court. That case held that sanctions should be imposed only after a hearing, the form of which shall depend on the nature of the conduct and circumstances of the case, and a written opinion.


Although the Court heard arguments on the motions, it did not designate the arguments as a hearing, nor did the Court set a hearing or present a written opinion.


Consequently, the Court rescinds its bench decision and hereby decides and orders as follows:


Plaintiff's motion for preclusion is denied; his motion for a court supervised deposition is denied, except that the Court directs that depositions of the parties be scheduled within the next 60 days at the courthouse, at a date and time when the Court will be available to hear and rule on any questions.


At that deposition, defendant will be required to answer

questions concerning his relationship with decedent, sexual or

otherwise, even though those questions and the answers may

reflect on the memory of the deceased or be repugnant to

defendant.


Costs of $100 on each motion is hereby awarded to the victorious party after trial, to be added to the bill of costs.


THIS IS THE DECISION AND ORDER OF THIS COURT. NO FURTHER ORDER SHALL BE NECESSARY.


Dated: May 31, 1995

Mayville, New York

 



 

JOSEPH GERACE

Justice of Supreme Court