Opinion
16980 Index No. 106778/07 Case No. 2022–00441
02-09-2023
Jerzy DABROWSKI et al., Plaintiffs-Appellants, v. ABAX INCORPORATED etc., et al., Defendants-Respondents. John Doe Bonding Companies 1-20, Defendants.
Virginia & Ambinder, LLP, New York (LaDonna M. Lusher of counsel), for appellants. Milman Labuda Law Group PLLC, Lake Success (Netanel Newberger of counsel), for respondents.
Virginia & Ambinder, LLP, New York (LaDonna M. Lusher of counsel), for appellants.
Milman Labuda Law Group PLLC, Lake Success (Netanel Newberger of counsel), for respondents.
Kern, J.P., Kennedy, Scarpulla, Pitt–Burke, Higgitt, JJ.
Order, Supreme Court, New York County (Francis A. Kahn III, J.), entered November 19, 2021, which granted defendants’ motion to dismiss class member, Piotr Nartowicz, from the action due to his failure to appear for deposition, unanimously affirmed, without costs.
Discovery from absent class members is generally permitted "where it is necessary and helpful to the correct determination of the principal suit" ( Murray v. Allied–Signal, Inc., 177 A.D.2d 984, 984, 578 N.Y.S.2d 4 [4th Dept. 1991] ; see also Fishon v. Peloton Interactive, Inc., 336 F.R.D. 67 [S.D. N.Y.2020] ; In re Warner Chilcott Sec. Litig., 2008 WL 344715, *2, 2008 U.S. Dist LEXIS 7613 [S.D. N.Y., Feb. 4, 2008] ). However, here, it is undisputed that plaintiffs entered into a so-ordered stipulation allowing defendants to depose four to five absent class members. It is also undisputed that plaintiffs did not appeal from the motion court's order granting defendants’ motion to compel the deposition of Piotr Nartowicz and denying plaintiffs’ motion to preclude his deposition. Therefore, the motion court providently exercised its discretion in granting defendants’ motion to dismiss absent class member Piotr Nartowicz from the action (see Fish & Richardson, P.C. v. Schindler, 75 A.D.3d 219, 220, 901 N.Y.S.2d 598 [1st Dept. 2010] ; CPLR 3126 ). Nartowicz's continued failure to contact class counsel or appear for his noticed depositions over the course of 15 years of litigation, including depositions noticed pursuant to a so-ordered stipulation and those in which a signed certified mail return receipt was received, demonstrates willful or contumacious conduct warranting his dismissal from the action (see Rocco v. KCL Protective Servs., 283 A.D.2d 317, 318, 724 N.Y.S.2d 419 [1st Dept. 2001] ; see also Reidel v. Ryder TRS, Inc., 13 A.D.3d 170, 171, 786 N.Y.S.2d 487 [1st Dept. 2004] ). The law of the case doctrine is inapplicable, as defendants proffered new instances of Nartowicz's recalcitrance in failing to appear for a court-ordered deposition since their last motion to dismiss was denied by the motion court and affirmed by this Court ( Dabrowski v. ABAX Inc., 135 A.D.3d 489, 22 N.Y.S.3d 828 [1st Dept. 2016] ).
We have considered plaintiffs’ remaining arguments and find them unavailing.