Judge sanctions lawyer and holds client in contempt over “frivolous” behavior at deposition
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CIVIL COURT OF THE CITY OF NEW YORK - NEW YORK COUNTY
PRESENT: HON. PETER H. MOULTON PART 61
Civil Court Judge
Bobby D. Associates, Plaintiff,
Eric Ohlson and Paul Ohlson, Defendant.
Index Number 3001 53/05
Motion Chl. # Motion Scq. #
DECISION AND ORDER
Upon the foregoing papers, these motions by plaintiff to hold defendant Eric Ohlson in contempt, and for sanctions against Olson's attorney, are granted to extent set forth below. The motion by defendant to vacate the default judgment is denied without prejudice.
This court has previously found Ohlson in contempt and he has failed to purge his contempt. As described in a previous decision of this court dated July 15, 2009, on February 15, 2005 a judgment was filed in Supreme Court, New York County, in favor of plaintiff and against defendant Eric Ohlson in the amount of $1 5,069.39. The matter was subsequently transferred to this court pursuant to CPLR 325(d) for proceedings against the remaining defendant.
Plaintiff subsequently served an income execution on defendant Eric Ohlson and his employer, pursuant to which the judgment was partially paid.
Judge Shulman signed a commitment order dated January 2,2009, which led to defendant being brought before me on May 20,2009. On that date, I explained on the record to Ohlson that he was in contempt of this court's order and the consequences of contempt. The court then issued an order, dated May 20,2009, stiltngth at: Defendant Eric Ohlson shall purge his contempt as follows. Eric Ohlson shall bring all documents responsive to the information subpoena rider, givcn to Ohlson today in court, to plaintiFs counsel's offices at 230 Park Avcnue, New York, NY, 25th Floor at 11 a.m. on June 4, 2009. Eric Ohlson shall also submit to a deposition on that date, to continue as necessary, on June 5th and sequential business days thereafter until complete.
Upon Ohlson's statement made on the record under oath that he would comply with the May 20, 2009 order, this court released him from custody.
Ohlson did appear at plaintiffs counsel's offices on June 4, but he failed to bring any of the specified documents. The brief transcript demonstrates that Ohlson refused to answer questions. After a brief colloquy Ohlson left the room stating "I will see you in court, buddy ."
Ohlson then moved pro se to vacate the default Plaintiff sought another order of commitment. Ohlson's motion was denied In a decision dated July 15, 2009. The court found that Ohlson was still in civil contempt of this court's order dated June 16, 2008, and was in civil and criminal contempt of this court's order dated May 20,2009. (Judiciary Law §§ 750, 753.) Upon his appearance in court on July 15, I directed Court Officers to take Eric Ohlson into custody at
approximately 10:30 am. The court released Ohlson from custody at approximately 12:30 pm, to give him an additional opportunity to purge his contempt.
The July l5th decision states in relevant part:
The court finds that Eric Ohlson had defied two clear orders of the court and that his actions have impaired, impeded, and prejudiced the rights of plaintiff to gather information regarding Eric Ohlson's assets, if any, that could be used to satisfy the judgment against him. The court also finds that he has willfully disobeyed the May 20, 2009 order of this court.
The court further held in the July I 51h decision:
1) Eric Ohlson shall pay plaintiff 3n additional $1000 toward compensating it for its costs in preparing for the aborted deposition and for preparing two commitment orders. The clerk shall enter judgment in favor of plaintiff and against defendant Eric Ohlson in that amount. The judgment entered in Supreme Court remains in effect.
2) Eric Ohlson shall bring all documents responsive to the information subpoena rider to plaintiffs counsel's offices at 230 Park Avenue, New York, NY, 25& Floor, at loam on July 28, 2009. Eric Ohlson shall also submit to a deposition on that date, to continue as necessary, on July 29, 2009, and on sequential business days thereafter until complete.
Ohlson shall answer all questions put to him by plaintiff’s attorney. except, as is usual, ,my question that is violative of a privilege or a constitutional right. The parties may call the court in chambers for rulings should defendant refuse to answer questions. Ohlson appeared for the deposition on the appointed day, represented by cnunsel Robert Arleo. He brought documents responsive to the subpoena. Things got off to a bad start when Mr. Arleo delayed the beginning of the deposition by demanding information about the balance owed by Ohlson. Thc deposition then proceeded in fits and starts as Mr. Arleo made several meritless instructions to Oblson not to answer questions. During the course of the deposition, I was contacted by the parties and I recited the rules concerning instructions to a witness not to answer questions at a deposition. Despite the intervention of the court Mr. Arleo continued to disrupt the deposition with meritless objections and commentary. He made speaking objections and attempted to re-formulate plaintiff's counsel's questions. In short, he disrupted the deposition. Some testimony was given by Ohlson concerning his volunteer job, absence of assets, car ownership, and other matters. Progress slowed when petitioner's counsel began to ask questions about Ohlson's tax returns. Despite a second call to the court, in which I instructed the parties, inter alia, to "get it done today," Arleo and Ohlson departed the deposition soon after the lunch break. It is clear that plaintiff still had several legitimate lines of questioning to pursue at the time of their departure.
Mr. Arleo's behavior would have been bad enough at any deposition, but this deposition had been court-ordered twice so that client could purge his contempt of court. Mr. Arleo's behavior at the deposition ran athwart his client's duty to purge his contempt.
The court finds that Ohlson's behavior at the deposition constitutes a continued contempt of this court's prior orders, and that Ohlson's actions have impaired, impedcd, and prejudiced the petitioner's rights. However, the court notes that Ohlson did provide some documents and information at his dcposition and so partially conlplied with this court's orders. Accordingly, the court declines to again fine Ohlson, at this time. To purge his contempt, Ohlson shall complete
his deposition on November 5,2009 at the offices of Diamond Reporting at 10 am, or at some other time as the parties agree to in writing. The deposition shall be continued on consecutive business days until complete unless the parties agree otherwise in writing. Plaintiff's counsel shall provide defendant's counsel with the correct address of Diamond Reporting. The court will attempt to make itself available to provide rulings. if necessary, by phone. The rulings made
by the court to date should obviate the need for such telephone rulings.
The court also finds that Arleo's meritless objections and contumacious behavior at the deposition -- and his premature departure from the deposition - were frivolous as defined in Rule 130.1 of the Rules of the Chief Administrator, in that these actions were undertaken primarily to delay or prolong the resolution of the litigation and were completely without merit in law. Accordingly, Mr. Arleo shall pay to plaintiff $750 toward its actual costs for the instant
Defendant's motion to vacate the default judgment is denied without prejudice to resubmission if defendant has a good faith basis for doing so, after defendant has purged his contempt by completing the deposition.
This constitutes the decision and order of the court.
Dated: October 30,2009
Peter H. Moulton, C.C.J.