Leonor Dátil Perez, Respondent, v Time Moving & Storage, Appellant
Supreme Court, Appellate Division, First Department, New York
[813 NYS2d 411]
Leonor Dátil Perez commenced this action as plaintiff pro se against Time Moving & Storage (Time Moving) for property damage to her collection of newspapers dating back to the Civil War. According to plaintiff, the collection contains 36 issues which narrate the entire war.
Beginning in Octоber 2004, a series of conferences was held where the parties discussed the discovery schedule. Plaintiff requested that Time Moving‘s principal and co-owner, Joseph Candella (Candella), be barred from attending her deposition and the deposition of Time Moving‘s employees. The court ordered depositions to be held at the courthouse and be conducted “with counsels and witness present at time of deposition.” The court further instructed that defendant could readdress the request for Cаndella to be present at plaintiff‘s deposition prior to that deposition.
In court, on June 16, 2005, plaintiff withdrew her objection to the presence of Candella аt her deposition. On June 24, 2005, following plaintiff‘s deposition, the parties appeared in court again to address the issue of whether Candella could be present during thе deposition of one of Time Moving‘s employees.
Plaintiff argued that he should not be present at the deposition stating: “I feel it‘s very intimidated [sic] for his employees.” Shе claimed that Candella interrupted during her deposition:
“There is a lot of interruption during the depositions where he interferes, writing notes and they go outside to confer about the deposition, and I think it‘s burdensome for me as a plaintiff to have him, especially when after deposing him I felt he was very misinformed to the point of what I consider very false claims, and I prefer to find out the truth through his employees, by his employees being alone who can look straight in the eyes and tell me the truth and not feel intimidated.”
She also informed the court that it was her first deposition. When the court continued to question plaintiff as to why she did not want Candella present at the deposition she statеd:
“The main reason, Your Honor, is because originally I felt burdensome to have three people and myself in a deposition. I found it disadvantageous for myself, and intimidating for the employees to have all these people planning what they are going to say, especially after the deposition of Mr. Candella. He‘s continuоusly interfering and sending notes to him what to question.”
The motion court barred Candella from the deposition of defendant‘s employees, stating: “We have a pro se plаintiff in the presence of the attorney for the defendant and the principal
Thus, the motion court barred Candella from appearing at the deposition of his employees. For the reasons set forth below, we disagree and reverse.
At the outset we acknowledge that а corporation cannot appear “in person” when defending a civil action. But examining a corporation‘s officers or employees is equivalеnt to an examination of the corporation itself (Loosnk Bros., Inc. v Mednick, 246 App Div 464, 466 [1935]). In this case, Candella as principal and co-owner of Time Moving, is effectively a party to the lawsuit (see American Print. Converters v JES Label & Tape, 103 AD2d 787, 788 [1984] [error to exclude an officer of the corporate defendant from the courtroom during a portion of the trial, where there were no unusual circumstances]).
Time Moving asserts correctly however that to exclude a party from a pretrial deposition, a showing оf “unusual” circumstances must be met (Lunney v Graham, 91 AD2d at 593; cf. Matter of Czachor, 137 AD2d 915, 916 [1988] [where one of two petitioners was excluded so that testimony would not be colored by attendance at the deposition of the other petitioner]; Naatz v Queensbury Cent. School Dist., 166 AD2d 866, 867 [1990] [court excluded certain employees from witnessing the testimony of their fellow employees because defendant would have unfair advаntage if each witness testified in the presence of other witnesses]).
However, in the case at bar, there is simply nothing to indicate either a compelling necеssity for the exclusion of Candella or a waiver of his right to be present as the representative of defendant corporation at the deposition (see Matter of Radjpaul v Patton, 145 AD2d 494, 497 [1988] [lack of evidentiary support in the record to justify the exclusion of a party from being present during the cross-examination of a nonparty witness]). Indeed, the motion cоurt‘s exclusion of Candella, and thus of defendant, appears to be based on nothing more than plaintiff‘s
On appeal, plaintiff attempts to clarify and expand her argument. She states: “Candella‘s behavior charge [sic] with venoms against [рlaintiff]. His refusal to stop talking extensively with continuous false statements about the facts even when advised that he was perjuring himself during the deposition, besides the insulting verbal abuse from [defense counsel] made their presence burdensome, obstructive and unfair.”
Plaintiff further claims that defense counsel made “derogatory statements” against her and his “hatred and aggression against [plaintiff] is very distracting and he terrorized the [plaintiff] during the first two days of the inspection.”
While
Finally, the motion court‘s finding that the presence of Time Moving‘s counsel at the deposition adequately protects defendant‘s interest and legal rights is as erronеous as is its conclusion that a transcript is sufficient to prevent undue prejudice. A transcript is a poor substitute for being present to assist counsel at the time of the dеposition. Candella‘s absence would preclude him from educating counsel during the deposition on matters as to which he possesses knowledge superior to that of the attorney. Barring him from attending the deposition would also