Adam Leitman Bailey, P.C. Demonstrates Lower Court Improvidently Exercised Discretion, Secures A Discovery Victory for Its Client

Adam Leitman Bailey, P.C. Demonstrates Lower Court Improvidently Exercised Discretion, Secures A Discovery Victory for Its Client

Adam Leitman Bailey

Adam Leitman Bailey

January 17, 2023 02:51 PM

In an action where shareholders of two cooperative apartments are suing the cooperative corporation and seeking damages for breach of contract and negligence and other relief due to pervasive leaking into their units, which caused their children to suffer from toxic mold and otherwise caused extensive property damage to their units, the plaintiffs’ former counsel had conducted a deposition of a non-party witness who was the largest shareholder in the cooperative and who had served on the board for over a quarter of a century. Her knowledge of what the cooperative did or did not do to abate the leaking was clearly material and necessary testimony.

As the deposition progressed, the exchange between former counsel and the deponent became heated with the attorney calling the witness a liar and telling her she had plenty to worry about. The deponent’s counsel, who independently was representing the cooperative, halted the deposition. Subsequently he moved to sanction the plaintiff’s counsel and for a protective order prohibiting the continuation of the deposition of the non-party. In response, former counsel opposed the motion and also moved to be relieved as plaintiffs’ counsel. Our firm then appeared and requested that we be permitted to continue the deposition as there would no longer be any interplay between the witness and the former counsel.

The lower court, in a somewhat backwards exercise, did not sanction former counsel. Instead, the court effectively sanctioned the Plaintiffs by issuing a protective order which went beyond the relief requested by the cooperative. The order and prohibited the use of the deposition as evidence in chief to impeach the witness at trial, denied a continuing deposition, and relegated Plaintiffs to submitting interrogatories.

Adam Leitman Bailey, P.C. appealed to the Appellate Division, First Department from that portion of the order granting the draconian protective order. The cooperative opposed and cross-appealed the lower court’s denial of sanctions against prior counsel.

On appeal, Adam Leitman Bailey, P.C. demonstrated that the lower court improvidently exercised its discretion by granting the protective order that was far beyond the relief requested by the cooperative. The Appellate Division adopted our arguments and unanimously reversed the order on the laws and the facts. The court ruled that the suppression of the deposition testimony, and submission of interrogatories be vacated, and directed that the deposition of the key witness must continue. While our firm took no position regarding the cooperative’s request for sanctions, the Appellate Division imposed sanctions against former counsel in the amount of $5,000.

Colin E. Kaufman represented the Plaintiffs before the lower court and Jeffrey R. Metz represented the Plaintiffs on appeal to the Appellate Division.

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