Commercial Division Blog

Posted: February 16, 2024 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Seth D. Allen, Joshua Wurtzel, Channing J. Turner / Categories Discovery/Disclosure, Preclusion, Trial

Plaintiff Barred From Calling Witnesses at Trial Due to Failure to Identify Witnesses During Discovery or in Pre-Trial Filings

On February 1, 2024, Justice Andrea Masley of the New York County Commercial Division, issued a decision in Gerasimowicz v Aslanis, 2024 NY Slip Op 30384(U), Index No. 654322/2013, granting defendants’ motion to preclude plaintiff from calling seven witnesses at trial based on plaintiff’s failure to identify those witnesses despite being repeatedly asked to do so during discovery or pursuant to the Court-ordered pre-trial schedule.  The Court rejected plaintiff’s argument that this failure could be cured by permitting the witnesses to be deposed before trial, noting plaintiff’s repeated failure to comply with discovery orders.  The Court explained:

Plaintiff is barred from calling seven witnesses -- defendants' employees or former employees (NYSCEF 234, Newman aff  ¶15) - because he failed to disclose the names of those witnesses during discovery in this 2013 case when he was specifically and repeatedly asked to identify witnesses. (NYSCEF 66, December 19, 2018 Notice for Discovery and Inspection, ¶61; see also NYSCEF 67, December 19, 2018 Interrogatories.) Plaintiff's invitation to defendants to take the depositions of the seven undisclosed witnesses is rejected as the court will not reward plaintiff's serial failure to comply with discovery orders. (NYSCEF 58, Supplemental Decision and Order [mot. seq. 002] [granting counsel's request to be relieved as counsel to plaintiff and counsel directed to turnover box of documents to plaintiff; NYSCEF 59, August 14, 20182 PC [demands to be served by October 9, 2018 and responses by December 4, 2018; depositions by February 28, 2019; plaintiff referred to City Bar Legal Referral Service to engage an attorney];3 NYSCEF 74, March 7, 20194 Order [directing plaintiff to file motion for order directing prior counsel to turn over 26 boxes of documents and directing plaintiff to respond to defendants' demands]; NYSCEF 75, June 5, 2019 Order [plaintiff failed to comply with March 7, 2019 order]; NYSCEF 77, August 13, 20196 Order [case dismissed unless plaintiff appears for deposition];7 NYSCEF 78, October 7, 20198 Order [plaintiff failed to comply with court order and failed to appear for conference; defendants directed to move for dismissal]; NYSCEF 146, October 29, 2020 Decision and Order [mot seq no 005] [denying defendants' motion to dismiss for failure to comply with discovery as long as plaintiff complies with the schedule in the order]; NYSCEF 151, November 12, 2020 Order [explaining why plaintiff waived his right to discovery];9 NYSCEF 193, July 26, 2021 Decision and Order [mot seq no 006] [denial of sanctions; new discovery set with note of issue deadline]; NYSCEF 197, August 10, 2022 Order [all depositions not completed are waived and directing plaintiff to file the note of issue again].) 10 There must be consequences for such flagrant disregard for court orders. Plaintiff's excuse that he just learned of these witnesses while he was preparing for trial is concerning to the court since plaintiff has the burden of proof: How did plaintiff intend to prove his case? (Daniels v NY City Tr. Auth., 171 AD3d 601, 602-603 [1st Dept 2019] [precluding two witnesses proper where defendant "fail[ed] to provide a reasonable explanation for its failure to disclose two of the witnesses earlier in response to discovery demands".])

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning discovery, motions to preclude or trial practice.