Opinion
INDEX NO. 157357/2017
04-03-2019
BECKY YANG, Plaintiff, v. BENJAMIN H. PLUM, Defendant.
NYSCEF DOC. NO. 21 PRESENT: HON. KATHRYN E. FREED Justice MOTION SEQ. NO. 001
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 10, 11, 12, 13, 14, 15, 16 were read on this motion to/for STAY. Upon the foregoing documents, it is ordered that the motion is decided as follows.
In this personal injury action by plaintiff Becky Yang against defendant Benjamin H. Plum, defendant moves, pursuant to CPLR 2201, for a stay of "any and all further discovery/disclosure, including defendant's deposition, in this matter pending the resolution of the pending criminal proceedings against [him]." Doc. 9. After oral argument, and after a review of the parties' papers and the relevant statutes and case law, the motion is denied.
FACTUAL AND PROCEDURAL BACKGROUND:
This action arises from an accident on August 28, 2016 in which defendant, who was piloting a boat off the coast of East Hampton, New York, allegedly drove the craft ashore at a high rate of speed, causing it to stop suddenly and eject and injure plaintiff, who had been a passenger. Doc. 2 at pars. 1, 6, 13. Immediately following the accident, defendant was arrested and charged with two counts of operating the vessel while under the influence of alcohol or drugs and one count of reckless operation of the same. Doc. 2 at pars. 20-21; Doc. 10 at par. 4.
Plaintiff commenced the captioned action by service of her summons and verified complaint on August 17, 2017. Doc. 2. In the complaint, plaintiff alleged that defendant was negligent and reckless in his operation of the boat. Doc. 2 at pars. 25-28. She also claimed punitive damages due to defendant's reckless, wanton and willful conduct. Doc. 2 at pars. 30-31.
Defendant filed a verified answer on October 23, 2017 in which he denied all substantive allegations of wrongdoing and asserted numerous affirmative defenses. Doc. 4.
The parties entered into a preliminary conference order on February 20, 2018. Doc. 8. That order, entered March 9, 2018, directed, inter alia, that all outstanding discovery was to be produced on or before March 23, 2018 and that the depositions of plaintiff and defendant were to be held on May 8 and 15, 2018, respectively. Doc. 8.
On May 22, 2018, defendant filed the instant motion seeking a stay of discovery pursuant to GPLR 2201 pending the outcome of the criminal proceedings against him. Docs. 9-13. Defendant argues that he "should not and cannot be compelled to answer questions regarding the facts and circumstances surrounding the subject boating accident" and "should not be forced to waive his privilege against self-incrimination if his testimony would incriminate [him]." Doc. 10 at par. 19. He urges that his "liberty interests certainly trump the interests of the parties in this civil litigation, at least while the criminal case is pending [against him]." Doc. 10 at par. 21. Further, he maintains that plaintiff cannot establish any prejudice which would result from a stay of discovery pending the outcome of the criminal proceedings against him. Doc. 10 at par. 23.
In opposition to the motion, plaintiff argues that New York law does not require that a court issue a stay where a party invokes his or her Fifth Amendment privilege, and defendant has not established his right to such relief. Doc. 14 at par. 2. Such a stay, urges plaintiff, would be prejudicial since it would deny her a speedy resolution of her claims. Doc. 14 at pars. 3, 32. Plaintiff further notes that defendant's motion is untimely insofar as she has already been deposed, and also asserts that defendant's deposition was adjourned due to purported scheduling issues. Doc. 14 at par. 2.
In reply, defendant argues that this Court has the discretion to stay a civil proceeding pending the outcome of a criminal investigation where a defendant demonstrates undue prejudice or interference with his or her constitutional rights. He maintains that his right against self-incrimination, as well as the fact that the investigation by the Easthampton Police and Suffolk County District Attorney's Office has not been made public, Warrant the granting of the stay while the criminal charges remain pending against him.
LEGAL CONCLUSIONS:
The principle is well settled that a motion pursuant to CPLR 2201 seeking to stay a civil action pending resolution of a related criminal action is directed to the sound discretion of the trial court (Matter of Kopf [Doublekay Contr. Corp.--United States], 169 AD2d 428). Factors to consider include avoiding the risk of inconsistent adjudications, application of proof and potential waste of judicial resources (Zonghetti v Jeromack, 150 AD2d 561, 563). A compelling factor is a situation where a defendant will invoke his or her constitutional right against self incrimination (DeSiervi v Liverzani, 136 AD2d 527, 528).Britt v Intl. Bus Servs., Inc., 255 AD2d 143, 144 (1st Dept 1998).
In his motion, defendant has not addressed any of the foregoing factors except the right against self-incrimination. "In the context of civil litigation, a discretionary stay is appropriate to avoid prejudice to another party that would result from the assertion of the privilege against self- incrimination by a witness; however, no such accommodation need be extended to the party who invokes the constitutional privilege. Here, it is [defendant] who [invokes] the privilege, and he is the only [party who could be] affected by that decision." Access Capital v DeCicco, 302 AD2d 48, 52 (1st Dept 2002) (citation omitted). Thus, defendant is not entitled to a discretionary stay.
Additionally, as noted above, defendant's attorney appeared at a preliminary conference, at which depositions of both parties were scheduled. Doc. 8. Defendant was arrested on the day of the accident and knew at the time of the preliminary conference that he had been charged with crimes. Since defendant nevertheless agreed to appear for his deposition despite such knowledge, he cannot now try to evade deposition based on these pending charges.
A witness in a civil case, unlike the defendant in a criminal case, may not refuse to appear on the ground that his privilege against self-incrimination may be violated during the proceeding. The assertion of the privilege in a civil case is considered premature until that point in the proceedings at which the potentially incriminating testimony is elicited . . . . Only at that point can the privilege appropriately be asserted and ruled on.Dancy v Panos, 46 Misc 3d 1209(A), 1209A, 2014 NY Slip Op 51908(U), *4 (Sup Ct, Dutchess County 2014) citing Weinstein-Korn-Miller, NY Civ Prac ¶ 4501.13.
A witness may not use the privilege to excuse failure to appear for an examination before trial. The witness must, instead, appear and answer any question as to which the privilege does not obtain.
Therefore, in light of the foregoing, it is hereby:
ORDERED that defendant's motion for a stay of this action pending the outcome of the criminal proceeding against him is denied; and it is further
ORDERED that the parties shall appear for a compliance conference on May 28, 2019 at 80 Centre Street, New York, New York, Room 280, at 2:15 p.m.; and it is further
ORDERED that this constitutes the decision and order of the court. 4/3/2019
DATE
/s/ _________
KATHRYN E. FREED, J.S.C.