SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1388 

CA 11-01042 

PRESENT: SCUDDER, P.J., SMITH, CENTRA, CARNI, AND MARTOCHE, JJ. 

 

 

RICHARD HANN, RITA HANN, 

PLAINTIFFS-RESPONDENTS, 

ET AL., PLAINTIFF, 

V MEMORANDUM AND ORDER

STEPHEN R. BLACK AND J&R SCHUGEL 

TRUCKING, INC., DEFENDANTS-APPELLANTS. 

 

RUSSO, KEANE & TONER, LLP, NEW YORK CITY (NAOMI M. TAUB OF COUNSEL),

FOR DEFENDANTS-APPELLANTS. 

FARACI LANGE, LLP, ROCHESTER (CAROL A. MCKENNA OF COUNSEL), FOR

PLAINTIFFS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Ontario County

(Frederick G. Reed, A.J.), entered December 22, 2010 in a personal

injury action. The order granted the motion of plaintiffs Richard

Hann and Rita Hann, struck the answer of defendants and granted

Richard Hann and Rita Hann partial summary judgment on the issue of

liability. 

It is hereby ORDERED that the order so appealed from is affirmed

without costs. 

Memorandum: Plaintiffs commenced this action seeking damages for

injuries sustained by Richard Hann (plaintiff) when the tractor

trailer driven by him collided with a tractor trailer driven by

defendant Stephen R. Black and owned by defendant J&R Schugel

Trucking, Inc. (J&R Schugel). Defendants contend on appeal that

Supreme Court erred in granting the motion of plaintiffs-respondents

(plaintiffs) to strike defendants’ answer pursuant to CPLR 3126 (3)

based, inter alia, on their failure to comply with a prior order

directing Black to be produced for a deposition, and for partial

summary judgment on liability. We reject that contention. 

We are compelled to note at the outset that Black left the

employment of J&R Schugel in October 2007 and that the accident

occurred in late January 2007, and thus the decision of the dissent is

based upon the well-established principle that a party may not be

compelled to produce a former employee for a deposition (see McGowan v

Eastman, 271 NY 195, 198). We of course acknowledge the validity of

that principle. We do not rely upon it, however, because defendants,

who were represented by the same counsel, raised no such contention in
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opposition to the motion, nor indeed is that contention raised for the

first time on appeal, which in any event would be improper (see

Ciesinski v Town of Aurora, 202 AD2d 984, 985). 

We reject the dissent’s position that the issue of control was

raised by defense counsel during the proceedings. In opposition to

plaintiffs’ motion to strike the answer, defendants’ attorney raised

the issue of control of Black as a basis for determining that J&R

Schugel’s failure to produce him was not willful or contumacious. 

Defendants’ attorney did not argue that J&R Schugel had no legal

obligation to produce him for a supplemental deposition because it no

longer employed Black. Rather, J&R Schugel implicitly concedes its

control over Black by virtue of its contention on appeal that it was

ready and willing to produce Black at a second deposition but was

unable to locate him. Indeed, defendants’ attorney expressly stated

in his opposing affirmation that Black would be produced “directly

before the trial.” Furthermore, contrary to the position taken by the

dissent, we do not view the representation of Black and J&R Schugel by

the same counsel as an arrangement of convenience. At the time of his

original deposition, Black was not employed by J&R Schugel, yet the

transcript of that deposition establishes that there was one attorney

of record for both defendants. In a letter to Black, dated after the

court had ordered a supplemental deposition, the attorney of record

stated that he was working “on the defense of your case.” Moreover,

when the court denied plaintiffs’ renewed motion for summary judgment,

it also ordered that “[d]efendants shall produce Stephen R. Black” for

a supplemental deposition (emphasis added), and we note that J&R

Schugel did not appeal from that part of the order (see generally CPLR

5501 [a] [1]). Parties “to a civil dispute are free to chart their

own litigation course” (Mitchell v New York Hosp., 61 NY2d 208, 214),

and “may fashion the basis upon which a particular controversy will be

resolved” (Cullen v Naples, 31 NY2d 818, 820). We see no reason to

reach the issue, raised sua sponte by the dissent (see CB Richard

Ellis, Buffalo, LLC v D.R. Watson Holdings, LLC, 60 AD3d 1409, 1410),

whether J&R Schugel had control over Black.

We thus turn to the merits of the contentions raised by the

parties on appeal. “It is well settled that ‘[t]rial courts have

broad discretion in supervising disclosure and, absent a clear abuse

of that discretion, a trial court’s exercise of such authority should

not be disturbed’ ” (Carpenter v Browning-Ferris Indus., 307 AD2d 713,

715). We have “repeatedly held that the striking of a pleading is

appropriate only where there is a clear showing that the failure to

comply with discovery demands is willful, contumacious, or in bad

faith” (Perry v Town of Geneva, 64 AD3d 1225, 1226 [internal quotation

marks omitted]). “Once a moving party establishes that the failure to

comply with a disclosure order was willful, contumacious or in bad

faith, the burden shifts to the nonmoving party to offer a reasonable

excuse” (WILJEFF, LLC v United Realty Mgt. Corp., 82 AD3d 1616, 1619). 

Contrary to defendants’ contention, plaintiffs met that initial

burden, “thereby shifting the burden to defendant[s] to offer a

reasonable excuse” (Hill v Oberoi, 13 AD3d 1095, 1096). Here, the

court’s determination “[t]hat the conduct of [defendants] was willful

and contumacious could be inferred from their failure to comply” with
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CA 11-01042 

an order to produce Black for a deposition, along with their

protracted delay in providing a response to plaintiffs’ demands for

the disclosure of photographs of the accident scene (Leone v Esposito,

299 AD2d 930, 931, lv dismissed 99 NY2d 611; see Kopin v Wal-Mart

Stores, 299 AD2d 937, 937-938).

We further conclude that defendants failed to meet their burden

of offering a reasonable excuse for failing to comply with the court’s

order to produce Black for a deposition or to provide the photographs

of the accident scene in a timely manner (see Hill, 13 AD3d at 1096). 

J&R Schugel contends that it could not comply with the order to

produce Black because it was unable to locate him. However, “[t]he

fact that [a defendant’s] whereabouts are unknown is no bar to

plaintiffs’ requested sanction” of striking defendants’ answer (Reidel

v Ryder TRS, Inc., 13 AD3d 170, 171), and in any event J&R Schugel

“offered insufficient proof of a good faith effort to locate” Black

(Mason v MTA N.Y. City Tr., 38 AD3d 258; see Reidel, 13 AD3d at 171).

Defendants contend for the first time on appeal that plaintiffs

were not prejudiced by defendants’ conduct, and thus that contention

is not properly before us (see Ciesinski, 202 AD2d at 985). Finally,

defendants’ contention that the court based its determination on

impermissible credibility determinations is not properly before us

because it is raised for the first time in defendants’ reply brief

(see generally Matter of State of New York v Zimmer [appeal No. 4], 63

AD3d 1563; Turner v Canale, 15 AD3d 960, 961, lv denied 5 NY3d 702).

All concur except CENTRA and CARNI, JJ., who dissent and vote to 

modify in accordance with the following Memorandum: We respectfully

dissent in part inasmuch as we cannot agree with our colleagues that

Supreme Court did not abuse its discretion in granting the motion of

plaintiffs-respondents (plaintiffs) to strike defendants’ answer

pursuant to CPLR 3126 (3) and for partial summary judgment on

liability. 

Initially, we note that, in October 2007, defendant Stephen R.

Black left the employment of the trucking company owned by defendant

J&R Schugel Trucking, Inc. (J&R Schugel). The accident had occurred

on January 26, 2007, and plaintiffs commenced this action on December

19, 2008. Black was initially deposed on July 21, 2009 and testified

that he was no longer employed by J&R Schugel. Thus, plaintiffs were

adequately informed well before trial that Black was no longer under

the control of J&R Schugel (see Schneider v Melmarkets Inc., 289 AD2d

470, 471). It is well settled that a party may not be compelled to

produce a former employee for a deposition (see McGowan v Eastman, 271

NY 195, 198). Here, plaintiffs made no effort - except to compel J&R

Schugel to produce a party over whom it had no control - to conduct a

further deposition of Black, although plaintiffs and J&R Schugel were

equally apprised of his whereabouts by Black himself, at his first

deposition (see Schneider, 289 AD2d 470).

Plaintiffs’ misguided effort to compel J&R Schugel to produce

Black led to a motion by plaintiffs for leave to renew a motion for

partial summary judgment on negligence, based on Black’s original
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CA 11-01042 

deposition testimony. That motion, as well as a motion by the third

plaintiff, resulted in an order signed on May 18, 2010, which denied

plaintiffs’ motions and provided that “[d]efendants shall produce

Stephen R. Black on the earliest possible date for a further

deposition concerning Defendants’ January 6, 2010 Supplemental

Response to Notice for Discovery and Inspection.” That order was

patently inappropriate on its face in that it required one defendant,

J&R Schugel, to produce a codefendant over whom it had no control. 

The order went much further than simply requiring J&R Schugel to use

its “best efforts” to produce Black (MS Partnership v Wal-Mart Stores,

273 AD2d 858, 858). Contrary to the majority’s position, J&R Schugel

specifically raised its lack of control over Black when it opposed

plaintiffs’ motion. Indeed, we have no difficulty concluding that J&R

Schugel’s statement that “[i]t had no clue nor should it be charged

with knowledge of [Black’s] current whereabouts as he is merely an

owner/operator of a truck on dispatch to [J&R] Schugel, not an

employee under their control” more than adequately raises the issue. 

Additionally, counsel for J&R Schugel specifically raised the issue at

oral argument of plaintiffs’ motion to strike defendants’ answer when,

in responding to the court’s query whether Black was still employed by

J&R Schugel, counsel stated, “He was never actually employed by them. 

He’s an owner/operator of a truck. So we actually tried to find out

from J&R Schugel if they knew where he was and he’s not an actual

employee so that made it more difficult as well.” Thus, the majority

incorrectly asserts that it is raised “sua sponte” herein. Moreover,

even if the issue had not been raised in opposition to plaintiffs’

motion, the fact of the matter is that the order of May 18, 2010

compelling J&R Schugel to produce a former employee - who was also a

codefendant - was unlawful in that the court was without power to

issue such an order (see McGowan, 271 NY at 198; Zappolo v Putnam

Hosp. Ctr., 117 AD2d 597; Holloway v Cha Cha Laundry, 97 AD2d 385;

Sparacino v City of New York, 85 AD2d 688; Frankel v French &

Polyclinic Med. School & Health Ctr., 70 AD2d 947). 

The majority also incorrectly concludes that the issue was not

raised on appeal. In any event, such an error of law is reviewable 

“ ‘despite the fact that it is raised for the first time on appeal

inasmuch as [plaintiffs] could not have opposed that contention by

factual showings or legal countersteps before [the court]’ ” (Britt v

Buffalo Mun. Hous. Auth., 48 AD3d 1181, 1182; see Oram v Capone, 206

AD2d 839, 840). The lack of an employment relationship between J&R

Schugel and Black, and therefore the lack of control, is undisputed

and apparent from the face of the record. Thus, the reality of the

situation is that the majority has concluded that J&R Schugel’s answer

should be stricken and that plaintiffs are entitled to partial summary

judgment on liability because J&R Schugel failed to comply with an

order that, at least with respect to J&R Schugel, the court had no

power to issue (see McGowan, 271 NY at 198). 

The majority also concludes that J&R Schugel “implicitly concedes

its control over Black by virtue of its contention on appeal that it

was ready and willing to produce Black at a second deposition but was

unable to locate him.” However, we are unable to conclude that a

party’s good faith attempts to comply with an unlawful order should be
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CA 11-01042 

used thereafter as a sword to strike down a patently meritorious

contention regarding the unlawfulness of the order in the first

instance. The majority further concludes that parties to a civil

dispute are “ ‘free to chart their own litigation course.’ ” We

hardly view J&R Schugel as having been “free” to chart its own

litigation course when it was restricted by an order that the majority

recognizes was made in error as a matter of law.

Although we acknowledge that Black and J&R Schugel Trucking were

represented by the same counsel, we surmise that such an arrangement

was no doubt the product of a cost-saving decision made by the

insurance carrier rather than a calculated decision of J&R Schugel to

seal its fate by linking itself to a former employee over whom it had

no control. The majority fails to provide any authority for the

proposition that the answer of one defendant can be stricken based on

a codefendant’s noncompliance with an order - which is precisely what

the majority has approved here. Reidel v Ryder TRS, Inc. (13 AD3d

170, 171), relied upon by the majority, involves the striking of the

answers of two defendants whose whereabouts were unknown - not the

answer of a codefendant that had no control over the noncompliant

party. Although plaintiffs were free to use contempt proceedings or a

warrant of commitment and arrest to secure Black’s presence at the

further deposition, they failed to pursue those remedies (see

Mermelstein v Kalker, 294 AD2d 413, 414; Quintanilla v Harchack, 259

AD2d 681, 682). 

Moreover, in evaluating whether to strike the answer of one of

two or more defendants, “[it] is incumbent upon the trial court to

protect the rights of any innocent party whose cause of action or

defense would be unfairly impaired by the imposition of a CPLR 3126

penalty on another, contumacious party” (Quintanilla, 259 AD2d at

682). Indeed, cases in which a court refuses, even if only

conditionally, to strike a codefendant’s answer where the adverse

impact would fall most heavily upon the remaining defendant that is

vicariously liable under Vehicle and Traffic Law § 388 are legion (see

e.g. Mermelstein, 294 AD2d 413; Quintanilla, 259 AD2d at 682; Magee v

City of New York, 242 AD2d 239; Gonzalez v National Car Rental, 178

AD2d 116; Briley v Morriseau, 99 AD2d 524; Di Giantomaso v Kreger

Truck Renting Co., 34 AD2d 964; Rozakis v Tilo Co., 32 AD2d 930;

Rogonia v Ferguson, 52 Misc 2d 298). 

 An identical factual setting was presented in Mermelstein (294

AD2d 413), where the former employee/driver refused to cooperate in

defending the action against himself and his former employer, a

codefendant. The Second Department concluded that Supreme Court erred

in granting plaintiff’s motion to strike the answer of the former

employee/driver and that the more appropriate sanction was to preclude

him from offering evidence on his own behalf at trial unless he

appeared for an examination before trial no later than 30 days prior

to trial (id. at 414). 

Insofar as the photographs of the accident scene are concerned,

after Black testified on July 21, 2009 with respect to their existence

and potential location, plaintiffs made a specific request for them on
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CA 11-01042 

September 15, 2009 and they were produced less than four months later,

on January 6, 2010. The trial was scheduled for December 1, 2010. 

Thus, plaintiffs had possession of the photographs for nearly a year

before the trial date. It is also of no small significance to our

analysis that plaintiffs never moved for or obtained an order

compelling the production of the photographs. Although in February

2009 plaintiff served boilerplate demands for the production of

photographs, it was not until Black’s examination before trial in July

2009 that it was confirmed that he took photos at the accident scene. 

As noted, J&R Schugel produced those photos in their entirety within

four months of plaintiffs’ specific letter request therefor.

Additionally, although plaintiffs claim prejudice from the delay

in producing the photos, Black was deposed on July 21, 2009 and

plaintiffs did not make a written request for the specific photos

identified by Black until September 15, 2009. This was four days

after plaintiffs initially moved for partial summary judgment on the

issue of negligence on September 11, 2009, and approximately two

months after Black’s deposition. Plaintiffs made no attempt to obtain

an extension of the scheduling order, which contained a cut-off date

for the filing of summary judgment motions. Further, plaintiffs claim

that the photographs belied Black’s deposition testimony that, at the

time of the accident, it was sunny and the road was dry. However,

Black testified at his deposition that at the scene of the accident

“[t]he road conditions changed from I would say from dry to at least

three seconds before the accident to wet.” Thus, it cannot be said

that the availability of the photos at the time of plaintiffs’ summary

judgment motion would have eliminated all issues of fact in

plaintiffs’ favor such that plaintiffs were substantively prejudiced

by the delay in disclosure. Here, there has been complete, albeit

belated, compliance with plaintiffs’ demand for photographs.

CPLR 3126 provides that, when a party refuses to obey an order to

disclose or fails to disclose information that the court finds ought

to have been disclosed, “the court may make such orders with regard to

the failure or refusal as are just” (emphasis added). We conclude

that, under the circumstances, it was unjust and an abuse of

discretion for the court to invoke the extreme and drastic penalty of

striking defendants’ answer (see Greene v Mullen, 70 AD3d 996, 996-

997). The more appropriate remedy with respect to the failure of

Black to appear for a further deposition is to preclude Black from

offering evidence on his own behalf at trial unless he appears for a

further deposition no later than 30 days prior to trial (see

Mermelstein, 294 AD2d at 414). The more appropriate remedy for J&R

Schugel’s delay in producing the photographs is to impose a monetary

sanction. Plaintiffs have the photographs, and the matter should

proceed to trial in accordance with the paramount goal of resolving

cases on their merits (see Mironer v City of New York, 79 AD3d 1106,

1107).

We therefore would modify the order by reinstating the answer and

granting plaintiffs’ motion to the extent of precluding Black from

offering evidence on his own behalf at trial unless he appears for a

further deposition no later than 30 days prior to trial and by
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CA 11-01042 

directing that J&R Schugel pay plaintiffs the sum of $1,250 as a

sanction for the delay in producing the photographs. 

Entered: June 8, 2012 Frances E. Cafarell

Clerk of the Court