Opinion
Index 651050/2017
09-21-2021
Global Revolution TV, VLADIMIR TEICHBERG, ALEX GERSHKOVICH, and JOSEPH FIONDA, Plaintiffs v. A.J. Muste Memorial Institute, Inc., and 214 ON STAR LLC, Defendants.
For Plaintiffs Thomas J. Hillgardner Esq. For Defendant Howard Bonfield Esq. Wenig Saltiel LLP
For Plaintiffs Thomas J. Hillgardner Esq.
For Defendant Howard Bonfield Esq. Wenig Saltiel LLP
LUCY BILLINGS, J.S.C.
Plaintiffs sue for breach of an executed lease by the remaining defendant A.J. Muste Memorial Institute, Inc., for commercial premises for plaintiff Global Revolution TV's operations at 165 Canal Street, New York County, or for promissory estoppel, after defendant accepted plaintiffs' security deposit for the premises. Defendant counterclaims for rent owed.
I. MOTION TO STRIKE DEFENDANT'S ANSWER
Plaintiffs move for a determination of the branch of their prior cross-motion that sought to strike defendant's answer due to its willful noncompliance with the order dated October 9, 2019, which gave defendant 30 days after the order to produce: "All records, or an affidavit, indicating whether plaintiff's security deposit was returned, or retained by defendants." Aff. in Opp'n of Howard S. Bonfield Ex. A (emphasis added). See C.P.L.R. § 3126(3). Plaintiffs seek bank records showing the disposition of plaintiffs' security deposit that plaintiff Teichberg tendered to defendant's executive director Heidi Boghosian.
Plaintiffs complain that, in a subsequent order dated June 4, 2021 (Cannataro, J.), the court overlooked the branch of their cross-motion that sought to strike defendant's answer due to its noncompliance with the prior order to produce either records or an affidavit indicating whether defendant returned or retained plaintiffs' security deposit. In that June 2021 order, the court acknowledged that plaintiffs cross-moved "pursuant to CPLR 3126 to strike defendants [sic] answer," but did not address that branch of plaintiffs' cross-motion further. Aff. of Thomas J. Hillgardner Ex. 3, at 1. On the same day as the order was entered, June 4, 2021, plaintiffs served notice of entry of the order.
Whether Justice Cannataro left a branch of plaintiff's cross-motion undecided and still pending, requiring a determination as plaintiff contends, or that branch of the cross-motion is considered denied when the court did not address the issue, Harlem Cap. Ctr., LLC v. Rosen & Gordon, LLC, 145 A.D.3d 579, 580 (1st Dep't 2016); Genger v. Arie Genger 1995 Life Ins. Trust, 84 A.D.3d 471, 472 (1st Dep't 2011), plaintiffs' current motion is a motion to reargue the branch of the cross-motion that was either overlooked or denied. The exception is only when, unlike here, the court explicitly declines to address a branch of a motion, reserving a determination until later. Henderson-Jones v. City of New York, 120 A.D.3d 1123, 1124 (1st Dep't 2014).
Plaintiffs did not serve their current motion until July 31, 2021, well past the 30 days to move to reargue their prior cross-motion to strike defendant's answer. C.P.L.R. § 2221(d)(3); Ramirez v. 2917 Grand Concourse, 195 A.D.3d 477, 478 (1st Dep't 2021). Nevertheless, even though plaintiffs' motion is untimely, the court retains jurisdiction to reconsider the court's prior orders during the action's pendency "without regard to the statutory time limits for motions to reargue." Luebke v. MBI Group, 122 A.D.3d 514, 514 (1st Dep't 2014). See Bayo v. 626 Sutter Ave. Assocs. LLC, 106 A.D.3d 648, 649 (1st Dep't 2013); Profita v. Diaz, 100 A.D.3d 481, 481 (1st Dep't 2012); Kleinser v. Astarita, 61 A.D.3d 597, 598 (1st Dep't 2009).
Reconsideration yields the determination that defendant has complied with the October 2019 order, albeit late. Defendant produced only one internal document, part of defendant's ledger for the relevant period, and no bank records showing the disposition of plaintiffs' deposit, but has produced Boghosian's affidavit dated August 16, 2021, with its Exhibit A, the ledger excerpt previously produced December 17, 2019, indicating that defendant retained plaintiffs' security deposit. If plaintiffs seek further details or other specific records regarding defendant's disposition of the deposit, plaintiffs may ask for that information at Boghosian's deposition or serve a further document request, but defendant has produced all that the October 2019 order required.
Although defendant produced the ledger excerpt 39 days after the October 2019 order's deadline of November 8, 2019, and Boghosian's affidavit another eight months later, that lateness does not warrant the ultimate penalty of striking defendant's answer, and plaintiffs seek no lesser penalty. Merrill Lynch, Pierce, Fenner & Smith v. Global Strat Inc., 22 N.Y.3d 877, 880 (2013); Parkinson v. Fedex Corp., 184 A.D.3d 433, 433-34 (1st Dep't 2020); Han v. New York City Tr. Auth., 169 A.D.3d 435, 435 (1st Dep't 2019); Vizcaino v. Western Beef, Inc., 161 A.D.3 632, 633 (1st Dep't 2018). Nor do they show any prejudice from the late production. Corrino Civetta Constr. Corp. v. City of New York, 67 N.Y.2d 297, 319 (1986); Michaluk v. New York City Health & Hosps. Corp., 169 A.D.3d 496, 496 (1st Dep't 2019); Liberty Petroleum Realty, LLC v. Gulf Oil, L.P., 164 A.D.3d 401, 408 (1st Dep't 2018); Lee v. 13th St. Entertainment LLC, 161 A.D.3d 631, 632 (1st Dep't 2018). They sought the records or affidavit preparatory to their deposition of Boghosian, which has been delayed by plaintiffs' failure to produce Teichberg for his deposition, not by defendants' failure to produce either records or an affidavit.
II. MOTION TO COMPEL DEPOSITIONS
Plaintiffs separately move to compel plaintiff Teichberg's deposition within 30 days and Boghosian's deposition within 30 days after plaintiffs receive the bank records sought showing the disposition of plaintiffs' security deposit. C.P.L.R. §§ 3107, 3124.
A. Administration of the Oath to Plaintiff Teichberg
While ordinarily plaintiffs would not move to compel one of their own depositions, they do so because they seek to dispense with the requirements for administration of an oath to Teichberg, who is to be deposed via videoconference in Spain. Under C.P.L.R. § 3113(a)(3), in a foreign country, a "diplomatic or consular agent or representative of the United States, appointed or accredited to, and residing within, the country, or a person appointed by commission or under letters rogatory, or an officer of the armed forces authorized to take the acknowledgment of deeds" must administer the oath to a deponent. See Semenov v. Semenov, 24 Misc.3d 1241 (A), 2009 NY LEXIS 2215, at *4 (Sup. Ct. Richmond Co. 2009). Despite these various alternatives, plaintiffs request that a notary public in New York administer the oath to Teichberg in Spain via the videoconference platform to be used for the deposition.
Plaintiffs point to C.P.L.R. § 3113(b), which provides that: "The officer before whom the deposition is to be taken shall put the witness under oath and shall personally, or by someone acting under his direction, record the testimony." Although this provision allows stenographers recording the testimony to administer the oath, assuming they otherwise are authorized, C.P.L.R. § 2309(a), they may do so only when "physically present at the place of the deposition," as C.P.L.R. § 3113(d) requires, unless "otherwise stipulated to by the parties." C.P.L.R. § 3113(d). See Matter of Smith, 29 Misc.3d 832, 834 (Surr. Ct. Bronx Co. 2010). New York Executive Law § 135, moreover, authorizes New York notaries to administer oaths only within the state.
The requirement for physical presence impresses on the deponent the gravity of his oath, which plaintiffs acknowledge. C.P.L.R. § 2309(b); MacKenzie v. Gharty, 131 A.D.3d 638, 638 (2d Dep't 2015); Liebler v. Friedman, 54 A.D.3d 697, 698 (2d Dep't 2008). Interpreting "the place of the deposition" conducted via videoconference, C.P.L.R. § 3113(d), as the place where the stenographer is recording the testimony would contravene the oath's objective. For similar reasons, plaintiffs' proposed alternative administration of the oath is more than an "irregularity" that the court may permit, as plaintiffs suggest. C.P.L.R. § 2001. Plaintiffs' proposed alternative violates both C.P.L.R. § 3113(a)(3) and (d) and Executive Law § 135.
Finally, plaintiffs suggest that the court dispense with the oath at the outset of the deposition entirely and permit Teichberg simply to subscribe and affirm the truth of the deposition transcript under penalties for perjury as he would an affirmation under C.P.L.R. § 2106(b). This alternative would negate altogether the separate requirements for swearing to deposition testimony under C.P.L.R. § 3113.
Here, defendant does not stipulate under C.P.L.R. § 3113(d) to plaintiffs' proposed alternatives, perhaps at least in part because plaintiffs utterly fail to demonstrate why it is unduly burdensome for them to comply with C.P.L.R. § 3113(a)(3). They have not shown any efforts to comply whatsoever. In the time and with the resources plaintiffs have expended on this motion, surely they could have secured a person authorized under § 3113(a)(3).
B. Costs of Teichberg's Deposition
C.P.L.R. § 3116(b) provides that: "Unless the court orders otherwise, the party taking the deposition shall bear the costs thereof." See Swiskey v. Lamotta, 224 A.D.2d 274, 274-75 (1st Dep't 1996); Matter of Frizziola, 2019 NY Misc. LEXIS 5349, at *6 (Surr. Ct. Richmond Co. Aug. 21, 2019); Matter of Grunwald, 2019 NY Misc. LEXIS 5348, at *6 (Surr. Ct. Richmond Co. Aug. 21, 2019). Therefore defendant ordinarily would bear the costs of taking plaintiff Teichberg's deposition. Swiskey v. Lamotta, 224 A.D.2d at 274-75; Matter of Smith, 29 Misc.3d at 834. When a party requests a deposition via videoconference, however, the requesting party bears any additional costs attributable to the remote deposition. C.P.L.R. § 3113(d); Matter of Frizziola, 2019 NY Misc. Lexis 5349, at *6-7; Matter of Grunwald, 2019 NY Misc. LEXIS 5348, at *6-7.
Here, the court (Cannataro, J.) granted plaintiffs' motion to conduct Teichberg's deposition in Spain via videoconference over defendant's opposition. Therefore plaintiffs shall bear any additional costs of Teichberg's deposition attributable to conducting it via videoconference in Spain. Gartner v. Unified Windows, Doors & Siding, Inc., 68 A.D.3d 815, 816 (2d Dep't 2009); Koch v. Sheresky, Aronson & Mayefsky, LLP, 2010 NY Misc. Lexis 2140, at *6-7 (Sup. Ct. NY Co. May 19, 2010); Semenov v. Semenov, 24 Misc.3d 1241 (A), 2009 NY LEXIS 2215, at *4; Matter of Singh, 22 Misc.3d 288, 291 (Surr. Ct. Bronx Co. 2008). Defendant consents to plaintiffs arranging for the stenographer who will record the testimony via videoconference, but shall bear the ordinary costs of Teichberg's deposition were it conducted in person in New York. C.P.L.R. § 3116(b); Matter of Frizziola, 2019 NY Misc. LEXIS 5349, at *6; Matter of Grunwald, 2019 NY Misc. LEXIS 5348, at *6.
The administration of the oath by a person authorized under C.P.L.R. § 3113(a)(3) is also a cost attributable to conducting Teichberg's deposition in Spain. See Doherty v. City of New York, 24 A.D.3d 275, 275-76 (1st Dep't 2005); Boatswain v. Boatswain, 3 Misc.3d 803, 807 (Sup. Ct. Kings Co. 2004). Therefore plaintiffs shall arrange for and bear any costs associated with the administration of the oath. Plaintiffs shall secure a "diplomatic or consular agent or representative of the United States, appointed or accredited to, and residing within" Spain "or an officer of the armed forces authorized to take the acknowledgment of deeds" to administer the oath to Teichberg. Alternatively, plaintiffs may request the court to issue a commission to a person fluent in English and authorized to administer oaths in Spain. C.P.L.R. § 3113(a)(3). See C.P.L.R. § 3108; Boatswain v. Boatswain, 3 Misc.3d at 806-807. Plaintiffs shall notify defendant in advance of Teichberg's deposition regarding the identity and qualifications of the person who will administer the oath.
III. CONCLUSION
For all the reasons explained above, the court denies plaintiffs' current motion to strike defendant's answer, C.P.L.R. § 3126(3), and denies plaintiffs' separate motion to compel depositions to the extent it seeks to alter the requirements for administration of an oath to plaintiff Teichberg at his deposition. C.P.L.R. § 3113(a)(3). The court grants the latter motion to the extent of ordering Teichberg's deposition by October 15, 2021, on the following conditions. C.P.L.R. §§ 3107, 3124. Plaintiffs shall arrange for the deposition via videoconference, bear any costs for the videoconference above the ordinary costs of the deposition, arrange and bear any costs for administration of the oath to Teichberg, and notify defendant in advance who will administer the oath. C.P.L.R. §§ 3113(a)(3) and (d), 3116(b). Since the court has denied plaintiffs' motion to strike defendant's answer due to defendant's nonproduction of bank records showing the disposition of plaintiffs' security deposit, the court grants plaintiffs' motion to compel Boghosian's deposition only to the extent of ordering her deposition within 20 days after Teichberg's deposition. C.P.L.R. §§ 3107, 3124. The court denies any further relief sought by plaintiffs' two motions.