Opinion
INDEX NO. 156864/2016
03-01-2019
SEOHEE KONG, Plaintiff, v. MORRISON-TENNENBAUM PLLC, THE MORRISON LAW OFFICES PC Defendants.
NYSCEF DOC. NO. 168 PRESENT: HON. MARGARET A. CHAN Justice MOTION DATE 02/27/2019, 02/27/2019, 02/27/2019 MOTION SEQ. NO. 005 006 007
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 005) 113, 114, 115, 116, 117, 120, 121, 122, 123, 124 were read on this motion to/for DISCOVERY. The following e-filed documents, listed by NYSCEF document number (Motion 006) 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 152, 153, 154, 155, 156, 157 were read on this motion to/for SANCTIONS. The following e-filed documents, listed by NYSCEF document number (Motion 007) 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 158, 159, 160, 161, 162, 163, 164, 165 were read on this motion to/for DISCOVERY.
In this action for employment discrimination. In motion sequence (MS) 005 Defendants now move for an order pursuant to CPLR §3123, compelling Plaintiff to come into compliance the Defendants' discovery requests. In MS 006, Defendants move, and Plaintiff cross-moves pursuant to 22 NYCRR 130.1.1 for an order for sanctions against one another. In motion sequence 007, Plaintiff moves for, among other things, an order pursuant to CPLR §§3124 and 3126 compelling Defendants' witness Lawrence Morrison to continue his deposition and sanctions against Defendants and/or their counsel. Counsel for the parties appeared for oral argument on the aforesaid motions on February 27, 2019. MS 005, 006 and 007 are consolidated for joint disposition.
Motion Sequence 005
A notice to admit "is to be used only for disposing of uncontroverted questions of fact or those that are easily provable, and not for the purpose of compelling admission of fundamental and material issues or ultimate facts that can only be resolved after full trial" (Hawthrone Group v RE Ventures, 7 AD3d 320, 321 [1st Dept 2004]; see New Image Construction, Inc. v TDR Enterprises, Inc., 74 AD3d 680 [1st Dept 2010]; Hodes v City of New York, 165 AD2d 168 [1st Dept 1991]). Thus, a notice to admit is "designed to elicit admissions on matters which the requesting party 'reasonably believes there can be no substantial dispute' " (National Union Fire Insurance, Co. v Allen, 232 AD2d 80, 85 [1st Dept 1997]).
Justice Jennifer G. Schecter's May 1, 2018 Order denying Defendants' motion for summary judgment indicated that there are "numerous disputed issues of fact that compel the denial of the motion," including whether Plaintiff was an independent contractor or employee of Defendant and whether Plaintiff resigned from or was terminated under pretext for some reason other than pregnancy (NYSCEF #124). Accordingly, request numbers 2, 3, 4, 6, 7, 9, 12, 27, 29, 35, 36, 37, 38, 39, 42, 43, 44, 45, 46, 47, 48, 54, and 56 contained in the First Notice to Admit are determined to go to the heart of what is at issue in this matter and are stricken.
Further, the information sought in requests 13, 14, 19, 22, 24, 25, 26, and 53 contained in the First Notice to Admit may be obtained through discovery, including the deposition of Plaintiff. Thus, those requests are improper and stricken (see Fetahu v New Jersey Transit Corp., 167 AD3d 514, 515 [1st Dept 2018]; Altman v Kelly, 128 AD3d 741 [2d Dept 2015]; Jet One Group, Inc. v Halcyon Jet Holdings, Inc., 111 AD3d 890 [2d Dept 2013]).
Motion Sequence 006
Defendants' motion pursuant to 22 NYCRR 130-1.1 seeking reasonable attorney fees and actual expenses incurred in responding to Plaintiff's Motion made by Order to Show Cause, to Strike Defendants' answer pursuant to CPLR § 3126 is denied. Defendants claim that the affirmation by Plaintiff's counsel contained two false assertions: (1) Defendants' principal, Lawrence Morrison, intentionally avoided having his deposition taken; and (2) Defendant's counsel was delaying or obstructing Morrison's deposition (NYSCEF #128, p4, ¶5; p.2, ¶¶8-¶9; p.3 ¶¶14-15). However, Defendants have not shown that the assertions by Plaintiff's counsel are false or misleading (see 22 NYCRR 1301.1[c][3]; Haynes v. Haynes, 72 A.D.3d 535, 536 [1st Dept 2010]). Moreover, Defendants' claim that counsel for Plaintiff unjustifiably attacked the credibility of Morrison and Defendants' counsel does not warrant sanctions.
The court notes that Plaintiff withdrew her motion to strike at an in-court appearance on January 23, 2019 (NYSCEF #125).
Plaintiff's cross-motion pursuant to 22 NYCRR 130.1.1, for sanctions against Defendants and their attorneys for making a frivolous motion for sanctions is also denied. Defendants' motion for sanctions, while unsuccessful, was not frivolous or in bad faith, or designed to "harass or maliciously injure another," such that his conduct should not be sanctioned (22 NYCRR 130-1.1 [c]; Zappin v. Comfort, 146 AD3d 575 [1st Dept 2017]).
Motion Sequence 007
The branch of Plaintiff's motion to compel Defendants' witness Morrison to answer the questions at his deposition that he either refused to answer or was directed by his counsel not to answer, is granted to the extent that Morrison's deposition shall continue; and Morrison shall answer questions as to: the existence of a maternity policy; whether any malpractice lawsuits were filed against Defendants during the time of Plaintiff's "employment" with Defendants and, if so, whether Plaintiff worked on any of those cases; and Plaintiff's re-direct examination of Morrison, if any, is limited to issues raised in cross-examination.
Plaintiff's request that Morrison be required to answer questions related to his "business judgment," is denied. Counsel for Plaintiff marked Morrison's answer for a ruling and may continue questioning Morrison only as to how the decision was made as to which defendant-law firms would pay Plaintiff (NYSCEF #145, p.145:22-147:19).
Further, the branch of Plaintiff's motion directing that sanctions be assessed against Defendants and/or their counsel for their frivolous conduct at the deposition of Morrison pursuant to 22 NYCRR 130.1.1, including the cost of the aforesaid deposition transcript and attorney's fees (MS 007), is denied. After reviewing the transcript, the court determines that counsel for Defendants' premature termination of the deposition, in this instance, does not warrant sanctions (see Polidori v. Societe Generale Grp., 57 A.D.3d 369 [1st Dept 2008]).
Conclusion
Accordingly, it is hereby,
ORDERED that Defendants' motion pursuant to CPLR §3123, compelling Plaintiff to comply with Defendant's discovery requests contained in the First Notice to Admit (MS 005), is granted in part. Paragraphs 2, 3, 4, 6, 7, 9, 12, 19, 22, 24, 25, 26, 27, 29, 35, 36, 37, 38, 39, 42, 43, 44, 45, 46, 47, 48, 53, 54, and 56 are stricken; it is further
ORDERED that Plaintiff shall provide responses to the balance of the outstanding requests contained in the notice to admit to the extent not already provided, within 30 days of this Order; it is further
ORDERED that the First Notice to Admit is amended as follows: • Question 5 is amended to read: "On November 3, 2014, Ms. Kong stated in an email sent to Mr. Morrison that she had resigned "due to family planning;" and • Question 16 is amended to read: "Between October 20, 2014 and late March 2015, Ms. Kong had never requested temporary employment leave from the Defendants or asked the Defendants about returning to work;" it is further
ORDERED that Defendants' motion pursuant to 22 NYCRR 130-1.1 awarding the moving Defendants their reasonable attorney fees and actual expenses incurred in responding to Plaintiff's Motion made by Order to Show Cause, to Strike Defendants' answer pursuant to CPLR § 3126 (MS 006), is denied; it is further
ORDERED that Plaintiff's cross-motion pursuant to 22 NYCRR 130.1.1, for sanctions against Defendants and their attorneys for making a frivolous motion for sanctions (MS 006), is denied; it is further;
ORDERED that the branch of Plaintiff's motion to compel Defendants' witness Lawrence Morrison to answer the questions at his deposition that he either refused to answer or was directed by his counsel not to answer (MS 007), is granted in accordance with the above directives; it is further
ORDERED that the branch of Plaintiff's motion to compel Defendants' witness Lawrence Morrison to complete his deposition at Defendants' expense pursuant to CPLR §§3124 and 3126, and that said deposition be supervised pursuant to CPLR §3103 at the Defendants' expense (MS 007), is denied; it is further
ORDERED that the branch of Plaintiff's motion directing that the continued deposition of Lawrence Morrison as well as the deposition of the Plaintiff and any other future depositions be conducted under supervision pursuant to CPLR §3103 at the Defendants' expense (MS 007), is denied; it is further
ORDERED that the branch of Plaintiff's motion directing that sanctions be assessed against Defendants and/or their counsel for their frivolous conduct at the deposition of Defendants' witness Lawrence Morrison on January 4, 2019, pursuant to 22 NYCRR 130.1.1, such sanctions to include the cost of the aforesaid deposition transcript and attorney's fees (MS 007), is denied.
This constitutes the Decision and Order of the Court. 3/1/2019
DATE
/s/ _________
MARGARET A. CHAN, J.S.C.