Opinion
Index No. 504935/2022 Motion Seq. Nos. 10 11
02-27-2024
MELISSA SILLA, Plaintiff, v. THOMAS SILLA, JR., Defendant.
Unpublished Opinion
PRESENT: CHERYL J. GONZALES, J.S.C.
DECISION AND ORDER
HON. CHERYL J. GONZALES, J.S.C.
Recitation, as required by C.P.L.R. § 2219 (a), of the papers considered in the review of these motions.
Papers .................Numbered
Defendant's Notice of Motion, Affirmation, Affidavit.................... NYSCEF Doc. # 139 - 140
Defendant's Order to Show Cause, Affirmation........................... NYSCEF Doc. # 154-155
Plaintiffs Affidavit in Opposition ....................NYSCEF Doc. # 164
Exhibits .....................NYSCEF Doc. #141 - 149;
....................................156-160;
..................................165-169
Upon the foregoing cited papers, and all prior proceedings in this plenary action, the decision and order on these motions is as follows:
Plaintiff, Melissa Silla, pro se, commenced this plenary action on February 17, 2022 upon filing a Summons and Complaint in which Plaintiff requested an order enforcing the terms of the parties' separation agreement. Defendant, Thomas Silla, Jr., appeared by counsel and interposed a Verified Answer with Counterclaims on March 14, 2022. Plaintiff interposed an Answer to Defendant's Counterclaims on April 12, 2022.
Defendant moved by Notice of Motion on November 4,2023 seeking an Order (1) rearguing the decision of this Court dated August 9, 2023 regarding motion sequences 7 and 8; (2) upon granting reargument, denying the relief requested by Plaintiff and granting the relief requested from Defendant; (3) vacating the trial dates set by this Court in November 2023 due to Plaintiff s obstruction of her deposition which started on September 2.7,2023 and has yet to be concluded; (4) sanctioning Plaintiff $10,000,00 for the failure to respond to questions and the required rescheduling of the deposition; (5) dismissing the complaint of the Plaintiff for the failure to respond to questions at the deposition which started on September 27,2023; (6) precluding the Plaintiff from offering any evidence in the within proceeding; arid (7) for such other, further and different relief as to this Court is just and proper.
Defendant states that Plaintiff s deposition started on September 27, 2023 and while conducting the deposition, there was an objection to a question posed to Plaintiff. After Defendant's counsel sought court guidance and received a response, Plaintiff refused to answer the question. Further, Defendant states that Plaintiff was given instruction from her attorney to not answer the question.
Defendant further states that Plaintiffs counsel, who was only hired to conduct the deposition, refused to review the rule which the court provided as guidance on how to proceed. Instead, Plaintiffs counsel requested that the parties proceed with the deposition and he would review the court rule afterwards. Defendant states that Plaintiffs actions at the deposition were in violation of CPLR §3115 and court rules. Defendant requests counsel fees as a result Of Plaintiffs actions, and for costs associated with the deposition, Further, Defendant requests that the court strike Plaintiff s complaint or preclude Plaintiff from offering any evidence in this matter and/or sanctioning Plaintiff for her actions.
In addition, Defendant requests reargument of this Court's decision which Defendant believes created a procedural problem which the court did not consider at the time of the decision and Order. Moreover, Defendant states that granting Plaintiff Costs of $45.00 had no legal or factual basis as Plaintiffs motion was denied.
Prior to the return date of the Motion, Defendant also moved by Order to Show Cause (motion sequence #11) on December 18, 2023 for an Order (1) finding that Plaintiff violated a lawful mandate of the Order dated November 13, 2023; (2) adjudging Plaintiff in contempt of court pursuant to Judiciary Law§ 750:and Judiciary Law §753 for Violating the Order dated November 13, 2023; (3) upon finding Plaintiff in contempt, imposing a punishment pursuant to Judiciary Law § 751 including but not limited to fining Plaintiff; (4) granting counsel fees to Defendant in the amount of $2,500.00 with leave to apply for such further sums as necessary; (5) deeming motion sequence # 10 as unopposed and granting the relief requested therein, including setting the matter down for an Inquest on the counterclaim of Defendant; (6) for such other, further and different relief as to this Court is just and proper, Defendant asserts that pursuant to the Order dated November 13, 2023, this Court granted Defendant counsel fees based upon the failure of Plaintiffs counsel to appear for the scheduled court appearance and responding to the open motion (motion sequence #10). Defendant explains that there was an agreed upon motion schedule in which opposition of the motion would be due by December 11,2023 and reply was due by December 18, 2023.
Defendant states that he inquired of Plaintiff s counsel as to when Plaintiff intended to remit the payment of $750,00 to Defendant's counsel pursuant to the Order dated November 13, 2023. However, no payment has been made. In addition, Defendant asserts that no opposition was filed on motion sequence #10, and the motion should be considered unopposed and the relief requested therein should be granted. Defendant requests counsel fees in the sum of $2,750,00 and further fines to Plaintiff for her conduct throughout these proceedings.
In opposition to the Defendant's motion and order to show cause, Plaintiff, who now appears pro se, contends that it was Defendant's counsel who ended the deposition because he did not like: Plaintiff s response to a question. Plaintiff concedes that the court should consider Defendant's request to reargue the Decision dated August 9, 2023, but only for the purposes of precluding Defendant from talking the Plaintiffs deposition. Plaintiff states that after Defendant's counsel ended the deposition, he has yet to contact her to reschedule the deposition.
At the outset, it should be noted that Courts retain discretion to entertain requests for affirmative relief that do not meet the requirements of CPLR 2215. Fried v Jacob Holding, Inc., 110 A.D 3d 56, 65, 970 N.Y.S.2d 260 [2d Dept 2013]. While Plaintiffs opposition to both motions requests relief, the court declines to consider Plaintiffs opposition papers as a cross-motion and declines to consider her request for the relief of holding Defendant in contempt for his failure to abide by the terms in the Judgment of Divorce or Separation Agreement. Plaintiff did not annex a Notice of Cross Motion, the papers did not include the requisite notices for contempt or include an Affirmation or Affidavit of Service showing that the cross-motion was served at least three days prior to the motion date pursuant to CPLR § 2215, The branch of Defendant's motion which requests an Order vacating the trial dates set by this Court in November 2023 is moot. Pursuant to the Trial Scheduling Order dated June 8, 2023, trial in this matter was scheduled for November 13, 2023, November 14, 2023 and November 15, 2023. Defendant moved for relief on November 4, 2023, nine days prior to the scheduled commencement of trial in this matter. At the court appearance on November 13, 2023, trial did not move forward, and the remaining trial dates were vacated, Rearaunient of the decision and Order dated August 9, 2023
Defendant requests leave to reargue the court's Decision and Order dated August 9, 2023, and upon granting reargument, denying the relief requested by Plaintiff and granting the relief requested from Defendant.
A motion to reargue must be "based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221 [d][2]). The motion must he made within 30 days after service of a copy of the Order with notice of entry (CPLR 2221[d][3]). However, if the Order at issue was not served with notice of entry, men the 30-day deadline never begins to run (see Matter of Shahid v City of New York, 144 A.D.3d 1163,1164 [2d Dept 2016], quoting Churchill v. Malek, 84A.D.3d446 [1st Dept 2011]),
It should also be noted that a motion to reargue does not serve as a vehicle to permit the unsuccessful party an opportunity to argue again the very questions previously decided (Fosdick v Town of Hempstead 126 NY 651, 27 NE382 [1891]), nor does it permit one to advance different arguments than those made on the original application, or to take a position in consistent from that assumed initially (Simpson v Loehmann, 21 N.Y.2d 990, 238 NE 319 [1968]).
Defendant moves for reargument almost three months after the subject Decision and Order Was issued.: However, this motion is deemed timely as there is no proof that either party served a copy of the August 9, 2023 Order with notice of entry.
Defendant contends that procedural problems arose when the court allowed Plaintiff s former counsel to appear only for purposes of conducting the deposition, and then allowed him to be relieved by filing a Consent to Change Attorney. Defendant asserts that Defendant is unclear how service of the deposition transcript, once completed, should be handled as service could be made: upon Plaintiff or Plaintiffs former counsel. Defendant also claims this Court overlooked another issue since once Plaintiff s former counsel is relieved, Defendant is unclear how subpoenas would be served upon Plaintiff, and Defendant is unclear as to whether plaintiff will hire another attorney, which appears to be a pattern in this matter.
First, the court notes that Plaintiffs former counsel filed a general Notice of Appearance pursuant to CPLR § 321 (a) and did not file a limited scope appearance pursuant to CPLR § 321 (d). A Consent to Change Attorney was filed on NYSCEF on January 4, 2024 in which Plaintiffs former counsel was relieved and Plaintiff confirmed on the record that Mr, Thompson is no longer her attorney. Therefore, Plaintiff is again pro se. Pursuant to CPLR § 321 (b) (1), an attorney of record may be changed by filing a Consent to Change Attorney signed by the retiring attorney and the party. Further, notice must be given to adverse parties. The Consent to Change Attorney which was filed in this matter indicates that Plaintiff s former counsel is no longer Plaintiffs attorney, and Plaintiff is now unrepresented. It is clear that any documents which must be served in this matter should be served on Plaintiff as she is now appearing pro se. Should. Plaintiff decide to retain counsel, which she has the right to do (see Tischler v. Fahnestock & Co., Inc, 23 Misc.3d 384, 393 [Sup, Ct., Kings County 2009]), a Notice of Appearance must be filed and Defendant will be put on notice to serve documents upon Plaintiffs new counsel.
NYSCEF Document #163.
Defendant fails to draw a connection between Plaintiff s counsel being retained to represent her in this proceeding with the Decision and Order dated August 9, 2023, Defendant also falls to explain how this Court overlooked matters of fact or law in determining the prior motions. The court's decision and Order dated August 9, 2023 denied Defendant's request to preclude Plaintiff from offering testimony in this proceeding, denied Defendant's request that this Court find that Plaintiff refused to attend the deposition, denied Defendant's request to preclude Plaintiff from offering any testimony in this proceeding for failure to attend the scheduled deposition and
awarded Plaintiff costs in the sum of$45.00. Plaintiffs retention of an attorney to represent her for the scheduled deposition is not related to the issues addressed in the Decision and Order.
Moreover, Defendant's belief that the court granted Plaintiff costs of $45,00 for making a motion which was denied and had no basis is without merit. Plaintiff's motion Was granted in part and she was awarded $45.00 in costs. Defendant does not determine whether there was any legal or factual basis for the arguments made by Plaintiff in her motion, and this Court determined that some of the arguments made by Plaintiff had a basis.
Therefore, Defendant's request for leave to reargue the court's decision and Order dated August 9, 2023 is granted, and upon granting reargument, Defendant's request for relief is denied.
Sanctions
Defendant requests an Order imposing sanctions on Plaintiff in the amount of $10,000.00 dismissing the complaint of the: Plaintiff, and precluding the Plaintiff from offering any evidence in the within proceeding for her failure to respond to questions at the deposition and the required rescheduling of the deposition.
22 NYCRR § 221.1 (a) provides that "no objections shall be made, at a deposition except those which, pursuant to subdivision (b),(c) or (d) of' Rule 3115 of the Civil Practice Law and Rules, Would he waived if not interposed, and except, in compliance with subdivision (e) of such rule'\ In addition, "all objections made at a deposition shall be noted by the officer before whom the deposition is taken, and the answer shall be given and the deposition shall proceed subject to the objections and to the right of a person to apply for appropriate relief pursuant to Article 31 of the CPLR". Id. Moreover, 22 NYCRR § 221.1 (b) provides that "every objection raised during a deposition shall be stated succinctly and framed so as not to suggest an answer to the deponent and, at the request of the questioning attorney, shall include a clear statement as to any defect inform or other basis of error or irregularity'.
Further, pursuant to 22 NYCRR § 221.2, "a deponent shall answer all questions at a deposition, except (i) to preserve a privilege or right of confidentiality, (ii) to enforce a limitation set forth in an order of a court, or (Hi) when the question is plainly improper and. would, if answered, cause significant prejudice to any person". In addition, "an attorney shall not direct a deponent not to answer except as provided in CPLR Rule 3115 or this subdivision". Id. "Any refusal to answer or direction not to answer shall be accompanied by a succinct and clear statement of the basis therefor". Id.
Upon review Of the transcript of the deposition which began on September 27, 2023, Defendant requested a ruling when Plaintiff s counsel objected to Defendant's counsel's question (Sillatr at 15, lines 7-25; 16, lines 1- 14). The transcript reflects that the deposition continued and Defendant's attorney later stated that there was a response from chambers (Silla tr at 24, lines! - 22). Defendant's counsel continued to ask questions, but did not revisit the question that prompted the call for a ruling. Defendant's counsel then asked Plaintiff:
NYSCEF Document # 141.
Q: You asked several different judges to set aside the Separation Agreement and you asked for 50 percent of the value of the house, correct? (Silla tr at 28, lines .14 -17)
Plaintiff answered the question;
A: No, (Silla tr at 28, line 18)
Defendant's counsel asked a follow-up question:
Q: You never did that? It's a yes or a ho, ma'am. (Sillatr at 28, lines 19-20) Plaintiff responded:
A: It's a two-part question. (Silla tr at 28, line 21)
Whereupon, Plaintiff and Defendant's counsel had a dialogue regarding whether the question was or wasn't a two-part question. Plaintiffs former counsel advised that Plaintiff would not be able to answer the question with just a yes or a no. (Silla tr at 29, lines 4-5).
Plaintiff's and Defendant's counsel also had a discussion about the response they received from the court with regard to the answering of questions and the applicable rule which addresses their concerns. (Silla tr at 29 ,- 30, lines 6 through 21)
Plaintiffs counsel indicated that Plaintiff answered the question and Defendant's counsel insisted that the: answer had to be a yes or no.
Defendant's counsel concluded this dialogue by saying:
"Well, Counsel, then we 're going to break the deposition because there was an instruction and an email sent" (Silla tr at 30, lines 22-25)
Further, Defendant's counsel confirmed that the deposition would be ended:
"We're going to end the deposition now." (Silla tr.at 32, lines 7-8)
Pursuant to CPLR§ 3115 (b), objections to form are waived unless raised in a deposition. Plaintiff s counsel correctly asserted "that the Plaintiff could not answer the question with a yes or a no answer as the original question asked; whether Plaintiff asked several judges to set aside the separation agreement and asked if Plaintiff requested 50% of the house. This was a compound question and the form was improper. However, Plaintiffs counsel's proposition to hold: the question until the end of the deposition was also incorrect.
Notwithstanding, the aborted deposition session was caused by Defendant's counsel advising everyone that-we're going to break the deposition" and not because of Plaintiff s refusal to answer a question. In fact, Plaintiff correctly asserted that it was a two-part question. Defendant's counsel had an opportunity to ask the question in proper form but chose not to do so. Moreover, 22 NYCRR § 221.2 provides that "if the deponent does not answer a question, the examining party shall have the right to complete the remainder of the deposition". Defendant's counsel had every right to continue the remainder of the deposition, but he did not.
Therefore, Defendant's request for an Order sanctioning Plaintiff $10,000,00, dismissing the complaint of the Plaintiff, and precluding the Plaintiff from offering any evidence in the within proceeding for her failure to respond to questions at the deposition and the required rescheduling of the deposition i$ denied in its entirety.
Contempt
Defendant: requests an Order finding that Plaintiff violated a lawful mandate of the Order dated November 13, 2023, adjudging Plaintiff in contempt of court pursuant to Judiciary Law § 750 and Judiciary Law § 753 for violating the Order dated November 1:3/2023 and upon finding Plaintiff in contempt, imposing a punishment pursuant to Judiciary Law § 751 including but not limited to fining Plaintiff, In order for a movant to prevail on a motion to hold a party in civil contempt, he or she must establish by clear and convincing evidence that (1) a lawful order of the court, clearly expressing an unequivocal mandate, was: in effect, (2) the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) me movant was prejudiced by the offending conduct and (4) prejudice to the right of a party to the litigation. Tedesco v. Elio, 211 A.D.3d 1074, 1076 [2d Dept., 2022]; (Latterman v Latterman, 174 A.D.3d518, 519 [2d Dept 2019]; see also El-Dehdan v. El-Dehdan, 26 N.Y.3d 19,29 [2015]; Battinelli v Battinelli, 192 A.D.3d 957 [2d Dept' 2021]; Matter of Lallas v .Bolin, 162 A.D.3d 1029, 1030 [2d Dept 2018]; Shemtovv Shemtov, 153 A.D.3d 1295,1295 [2d Dept 2017]; Mollah v Mullah, 136 A.D.3d 992, 993 [2d Dept 2016]; Casler v Casler, 131 A.D.3d664, 665 [2d Dept 2015]; Lundgren v Lundgren, 127 A.D.3d 938, 940 [2d Dept 2015]). Satisfying the element of prejudice does not require that "the disobedience be deliberate or willful, rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party" (see Matter of Philie v Singer, 19 A.D.3d 1041/1042, 913 N.Y.S.2d 745[2d Dept, 2010];see also El-Dehdan v El-Dehdan, 26 NY3d 19, 35, 19 N.Y.S.3d 475,41 NE;3d340 [2015]).
"It is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party"(Cassarino, 149 A.D.3d at 691 [internal quotation marks omitted]; see also El-Dehdan, 26 N.Y.3d at 35). Thus/"[w]ilfulness is not an element of civil contempt" (Bquman v Bauman, 208 A.D.3d 624, 626 [2d Dept 2022]; see also Matter of Mendoza-Pautrat v Razdan, 160 A.D.3d 963, 965 [2d Dept 2018]).
Further, it should be noted that "the burden of proof is on the proponent of the contempt motion" (Massimi v Massimi, 56 A.D.3d 624, 624 [2d Dept 2008]).
Defendant-argues-'that Plaintiff has failed to make the required payment of counsel fees pursuant to the court's decision and Order dated November 13,2023, Pursuant to this Order, Plaintiff was required to pay directly to Defendant's counsel the sum of $750,00 which represents reimbursement for actual expenses reasonably incurred as a result of Plaintiff s counsel's failure to appear for trial on November 13, 2023. According to Defendant, Plaintiff has not made a payment towards the balance owed.
Defendant states that this Decision and Order dated November 13, 2023 was a lawful Order which clearly directed Plaintiff to pay Defendant $750.00 in counsel fees. Defendant contends that Plaintiff had knowledge of the court's Order since she was served with Notice of Entry of Order, Defendant provided a copy of the Order dated November 13, 2023, which provides that Plaintiff was required to pay directly to Defendant's counsel the sum of $750,00. The Order directs payment of counsel fees. However, the Order does not direct Plaintiff to make payment by a date certain. Therefore, the Order was not clear and unequivocal and sufficient to support a finding of contempt (see Spathis v. Spathis, 174 A.D.3d 407, 105 N.Y.S.3d 422 [1st Dept, 2019]), Therefore, Defendant's request for an Order finding that Plaintiff violated a lawful mandate of the Order dated November 13, 2023, adjudging Plaintiff in contempt of court pursuant to Judiciary Law § 750 and Judiciary Law § 753 for violating the Order dated November 13, 2023 and upon finding Plaintiff in contempt, imposing a punishment pursuant to Judiciary Law § 751 including but not limited to fining Plaintiff is denied.
Counsel Fees
Defendant requests counsel fees in the amount of $2,500.00, with leave to apply for such further sums as necessary.
Defendant's request to hold Plaintiff in contempt was denied, and Defendant did not prevail in this motion, Therefore, Defendant's request for counsel fees is denied.
It should also be noted that as the court has denied the relief requested by Defendant in motion sequence # 10, Defendant's request for an Order deeming motion sequence #10 as unopposed and granting the relief requested therein, including setting the matter down for an Inquest on the counterclaim of Defendant is denied.
In accordance with the foregoing, it is hereby:
ORDERED that Defendant's motions (motion sequence no. 10 and ho. 11) are denied; and it is further
ORDERED that Defendant shall complete the deposition of Plaintiff by March 31,2024; and it is further
ORDERED that the parties and all counsel shall appear IN PERSON in Part 5Z, Room 924, of the New York State Supreme Court, Kings County, located at 360 Adams Street, Brooklyn, New York 11201, for a pre-trial conference on April 15, 2024 at 11:00am.
This constitutes the decision and order of the court