Bateman v. The Permanent Mission of Chad to the United Nations in New York

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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CHARLES G. BATEMAN, III,

MEMORANDUM OPINION

Plaintiff, AND ORDER

v. 18-CV-00416 (PMH)

THE PERMANENT MISSION OF CHAD TO

THE UNITED NATIONS IN NEW YORK,

Defendant.

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THE PERMANENT MISSION OF CHAD TO

THE UNITED NATIONS IN NEW YORK,

Third-Party Plaintiff,

v.

HILT CONSTRUCTION AND

MANAGEMENT CORP.,

Third-Party Defendant.

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PHILIP M. HALPERN, United States District Judge:

Plaintiff Charles G. Bateman, III (“Plaintiff”) commenced this action against Defendant

The Permanent Mission of Chad to the United Nations in New York (“Chad”) alleging claims for

relief sounding in negligence and violations of New York Labor Law §§ 240 and 241, and Section

23 of the Industrial Code of the State of New York in connection with an accident that occurred at

the construction site during the renovation of a residence for the Ambassador for the Republic of

Chad to the United Nations (the “Complaint”). (Doc. 2, “Compl.”). On June 7, 2018, Chad filed

its Amended Answer to the Complaint (“Chad’s Answer”) (Doc. 17), and on August 10, 2018,

Chad commenced a third-party action (the “Third-Party Complaint”) against Hilt Construction and

Management Corp. (“Hilt”). (Doc. 23). Hilt filed its Answer to the Third-Party Complaint and

Counterclaim against Chad on December 6, 2018. (Doc. 39). Chad served (but apparently did not

file) an answer to Hilt’s counterclaim. (Doc. 64-6).

This action had been referred1 to Magistrate Judge Smith on July 18, 2018 for general pre-

trial administration, including scheduling, discovery, non-dispositive pre-trial motions, and

settlement. (Doc. 19). The parties appeared for approximately eight conferences with Magistrate

Judge Smith, and following the close of discovery, the parties sought and were granted permission

to make various motions. On March 13, 2020, Chad filed a motion for summary judgment (Doc.

65; Doc. 66, “Chad SJ Br.”), and Hilt filed its motion for summary judgment (Doc. 59; Doc. 61).

On June 26, 2020, Hilt and Chad opposed each other’s motions for summary judgment (Docs. 77-

81), and Plaintiff filed both a cross-motion to strike Chad’s Answer and its opposition to Hilt’s

motion for summary judgment. (Doc. 82; Doc. 84, “Pl. Br.”). On July 24, 2020, Chad and Hilt

filed replies in further support of their motions for summary judgment (Docs. 86-89), and Chad

filed its opposition to Plaintiff’s cross-motion (Docs. 90, 91). On August 7, 2020, Plaintiff filed

his reply with respect to his cross-motion to strike. (Doc. 92).2

For the reasons set forth below, Chad’s motion for summary judgment is DENIED; Hilt’s

motion for summary judgment is DENIED; and Plaintiff’s motion for sanctions is GRANTED in

part.

STANDARD OF REVIEW

I. Summary Judgment

Chad and Hilt each moved for summary judgment pursuant to Federal Rule of Civil

Procedure 56. Chad seeks an order dismissing Plaintiff’s Complaint and granting summary

1 The referral order was entered by Judge Karas, who presided over this case before it was reassigned to

this Court on April 16, 2020.

2 Citations to the parties’ briefs correspond to the pagination generated by ECF.

judgment to it on the Third-Party Complaint for common law and contractual indemnification

against Hilt; Hilt seeks summary judgment dismissing both Plaintiff’s Complaint and the Third-

Party Complaint.

Pursuant to Federal Rule of Civil Procedure 56, a court “shall grant summary judgment if

the movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ if it ‘might affect the

outcome of the suit under the governing law,’ and is genuinely in dispute ‘if the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.’” Liverpool v. Davis, 442 F.

Supp. 3d 714, 722 (S.D.N.Y. 2020) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). “‘Factual disputes that are irrelevant or unnecessary’ are not material and thus cannot

preclude summary judgment.” Sood v. Rampersaud, No. 12-CV-5486, 2013 WL 1681261, at *1

(S.D.N.Y. Apr. 17, 2013) (quoting Anderson, 477 U.S. at 248). The Court’s duty, when

determining whether summary judgment is appropriate, is “not to resolve disputed issues of fact

but to assess whether there are any factual issues to be tried.” Id. (quoting Wilson v. Nw. Mut. Ins.

Co., 625 F.3d 54, 60 (2d Cir. 2010)). Indeed, the Court’s function is not to determine the truth or

weigh the evidence; the task is material issue spotting, not material issue determining. Therefore,

“where there is an absence of sufficient proof as to one essential element of a claim, any factual

disputes with respect to other elements of the claim are immaterial . . . .” Bellotto v. Cty. of Orange,

248 F. App’x 232, 234 (2d Cir. 2007) (quoting Salahuddin v. Goord, 467 F.3d 263, 281 (2d Cir.

2006)). Claims simply cannot proceed in the absence of sufficient proof as to an essential element.

“It is the movant’s burden to show that no genuine factual dispute exists,” Vermont Teddy

Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S.H. Kress

& Co., 398 U.S. 144, 157 (1970)), and a court must “resolve all ambiguities and draw all

reasonable inferences in the non-movant's favor.” Id. (citing Giannullo v. City of New York, 322

F.3d 139, 140 (2d Cir. 2003)). Once the movant has met its burden, the non-movant “must come

forward with specific facts showing that there is a genuine issue for trial.” Liverpool, 442 F. Supp.

3d at 722 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87

(1986)). The non-movant cannot defeat a summary judgment motion by relying on “mere

speculation or conjecture as to the true nature of the facts. . . .” Id. (quoting Knight v. U.S. Fire

Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986)). However, “[i]f there is any evidence from which a

reasonable inference could be drawn in favor of the opposing party on the issue on which summary

judgment is sought, summary judgment is improper.” Sood, 2013 WL 1681261, at *2 (citing Sec.

Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004)).

Should there be no genuine issue of material fact, the movant must also establish its

“entitlement to judgment as a matter of law.” In re Davis New York Venture Fund Fee Litig., 805

F. App’x 79, 80 (2d Cir. 2020) (quoting FIH, LLC v. Found. Capital Partners LLC, 920 F.3d 134,

140 (2d Cir. 2019)). Stated simply, the movant must establish that the law favors the judgment

sought. Gonzalez v. Rutherford Corp., 881 F. Supp. 829, 834 (E.D.N.Y. 1995) (explaining “that

summary judgment is appropriate only when . . . law supports the moving party”); Linares v. City

of White Plains, 773 F. Supp. 559, 560 (S.D.N.Y. 1991) (summary judgment is appropriate when

“the law so favors the moving party that entry of judgment in favor of the movant . . . is proper”).

This standard applies equally to claims for relief and affirmative defenses. Giordano v. Market

Am., Inc., 599 F.3d 87, 93 (2d Cir. 2010) (“The same standard applies whether summary judgment

is granted on the merits or on an affirmative defense . . . .”).

II. Sanctions

Federal Rule of Civil Procedure 37(d) provides that the Court may, on motion, order

sanctions if a party “fails, after being served with proper notice, to appear for that person’s

deposition[.]” Fed. R. Civ. P. 37(d)(A)(i). Sanctions that may be imposed under Rule 37(d)

include, among others, “prohibiting the disobedient party from supporting or opposing designated

claims or defenses, or from introducing designated matters in evidence” and “striking pleadings in

whole or in part.” Fed. R. Civ. P. 37(b)(2)(A), (d)(3). “Instead of or in addition to these sanctions,

the court must require the party failing to act, the attorney advising that party, or both to pay the

reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was

substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P.

37(d)(3).

“Striking an answer, like dismissal or entry of default, is a drastic remedy generally to be

used only when the district judge has considered lesser alternatives.” Pelgrift v. 355 W. 51st Tavern

Inc., No. 14-CV-8934, 2016 WL 817470, at *2 (S.D.N.Y. Feb. 23, 2016). Further, “[b]efore the

extreme sanction of preclusion may be used by the district court, a judge should inquire more fully

into the actual difficulties which the violation causes, and must consider less drastic responses.”

Outley v. City of New York, 837 F.2d 587, 591 (2d Cir. 1988). In considering whether to impose

sanctions pursuant to Rule 37(d), courts consider: “(1) the willfulness of the non-compliant party

or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period

of noncompliance; and (4) whether the non-compliant party had been warned of the consequences

of . . . noncompliance.” Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009)

(citations omitted).

ANALYSIS

I. Chad’s Motion for Summary Judgment

Chad argues that Plaintiff’s first claim for relief fails because Chad was not involved at the

construction site and thus free of negligence as a matter of law; and that Plaintiff’s second and

third claims under Labor Law §§ 240 and 241 should be dismissed under the exemptions set forth

in those statutes. Chad further seeks summary judgment on its claim for contractual indemnity

against Hilt on the grounds that the language set forth in the contract between Chad and Hilt is

clear, and on its claim for common law indemnity against Hilt on the grounds that Chad was not

negligent and its liability, if any, will be strictly statutory.

With respect to Chad’s argument concerning the first claim for relief, the Court disagrees

that there is no triable issue of fact concerning Chad’s involvement at the construction site. “To

establish a prima facie case of negligence under New York law, a plaintiff must demonstrate (1) a

duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately

resulting therefrom.” Clark v. Target Corp., No. 18-CV-5865, 2020 WL 2115348, at *3 (S.D.N.Y.

May 4, 2020) (internal citations and quotation marks omitted). In this case, the duty at issue is “the

common law duty ‘to protect the health and safety of employees.’” In re World Trade Ctr. Lower

Manhattan Disaster Site Litig., 44 F. Supp. 3d 409, 431 (S.D.N.Y. 2014) (“WTC”) (quoting In re

Joint E. & S. Dist. Asbestos Litig., 827 F. Supp. 1014, 1052-53 (S.D.N.Y.1993), aff’d in part rev’d

in part on other grounds, 52 F.3d 1124 (2d Cir. 1995)). Liability is determined under either the

“means and method” standard or the “premises liability” standard.3 Id.

3 These standards are discussed in cases concerning New York Labor Law § 200. The common law of

negligence in New York is codified at New York Labor Law § 200, and courts analyze such claims

simultaneously; thus, under these circumstances, the Court does not find Plaintiff’s citation to cases

analyzing liability under § 200 to be inappropriate. See Wojcik v. 42nd St. Dev. Project, 386 F. Supp. 2d

442, 456 (S.D.N.Y. 2005) (collecting cases).

Under the “means and method” standard, “[t]o be held liable for injuries arising from the

manner in which work was performed, a defendant ‘must have actually exercised supervision and

control over the work performed at the site.’” Dwyer v. Goldman Sachs Headquarters LLC, 819

F. Supp. 2d 320, 329 (S.D.N.Y. 2011) (quoting McLeod v. Corp. of Presiding Bishop of Church

of Jesus Christ of Latter Day Saints, 839 N.Y.S.2d 164, 166 (App. Div. 2007)). Under the

“premises liability” standard, “a party is liable if (1) it created the dangerous condition causing the

injury or (2) failed to remedy a dangerous or defective condition of which he or she had actual or

constructive notice.” WTC, 44 F. Supp. 3d at 433. Plaintiff appears to argue that both standards

apply in this action. (Pl. Br. at 28-30).

In addition to the fact that Chad failed to produce any witness to testify to these issues—

discussed more fully below in connection with the Court’s determination on Plaintiff’s motion for

discovery sanctions—the admissible evidence on this motion reveals that Chad personnel were

present and supervised work at the site. (Doc. 67-7, “Mahon Decl.” Ex. H, “Bateman Dep.” at

127:25-129:17; Doc. 83-1, “Ecker Decl.” Ex. 1, “Ahmed Dep.” at 22:14-17, 23:25-24:5, 24:6-23,

26:24-27:8, 34:22-35:13, 35:23-36:15). Although the mere presence of a defendant at a worksite

and daily monitoring for safety violations are insufficient to satisfy the “means and method”

standard of liability, WTC, 44 F. Supp. 3d at 432, the extent to which Chad exercised supervisory

control and the scope of its input on Plaintiff’s methods, how the work was to be performed, at

what location the work was to be performed, and the scope of its knowledge concerning the

conditions at the construction site are genuine issues of material fact that are unresolved at this

stage of the litigation. Accordingly, Chad’s motion for summary judgment dismissing the first

claim for relief is denied.

With respect to Plaintiff’s second and third claims for relief, the Labor Law excludes

“owners of one and two-family dwellings who contract for but do not direct or control the work”

from absolute liability when a worker is injured. N.Y. Lab. Law §§ 240(1), 241. There is no

genuine issue of fact that the subject property upon which the accident occurred qualifies as a one-

family dwelling. (Doc 64-7, “Rome Decl.” Ex. H, “Construction Contract” at 1 (scope of work

was “to renovate [Chad’s] Ambassador’s residence . . . in a residential area designated as a R1-15

zone”; id. Ex. I at 1 (“one-family dwelling” in R1-15 zoned property); id. Ex. M (R1-15 zoning

classification is “One Family Residence”)). Whether Chad “direct[ed] or control[led] the work”

such that the exemptions set forth in Labor Law §§ 240 and 241 apply, however, is unresolved for

the same reasons discussed supra concerning Plaintiff’s negligence claim. Accordingly, Chad’s

motion for summary judgment dismissing the second and third claims for relief is denied.

Chad’s motion for summary judgment on its claims for contractual and common law

indemnity is denied as well. The Construction Contract provides, in relevant part, as follows:

To the fullest extent permitted by law, [Hilt] shall indemnify and

hold harmless [Chad] . . . from and against claims, damages, losses

and expenses . . . arising out of or resulting from performance of the

Work, provided that such claim, damage, loss or expense is

attributable . . . to injury . . . , but only to the extent caused by the

negligent acts or omissions of [Hilt] . . . regardless of whether or not

such claim, damage, loss or expense is caused in part by a party

indemnified hereunder.

(Construction Contract § 8.12 (emphasis added)). The Court simply cannot grant summary

judgment to Chad for contractual indemnity at this stage of the case. In addition to the triggering

requirement that Hilt be found to have been negligent—which is an unresolved issue of fact—

whether Chad directed, supervised, or controlled the work giving rise to the injuries sustained by

Plaintiff, as discussed above, are also disputed issues of fact that cannot be resolved on these

motions. “Summary judgment is difficult to obtain in negligence actions because whether conduct

is ‘negligent’ is a factual determination in all but the most extreme circumstances.” Rosa ex rel.

Est. of Acevedo v. Perelli, No. 02-CV-2290, 2004 WL 1237510, at *3 (S.D.N.Y. June 3,

2004) (citing King v. Crossland Savings Bank, 111 F.3d 251, 259 (2d Cir. 1997); INA Aviation

Corp. v. United States, 468 F.Supp. 695, 699 (E.D.N.Y. 1979) (“[N]egligence questions are

properly resolved at trial because, upon a motion for summary judgment, a court may not try issues

of fact; it may only determine whether there are factual issues to be tried.”)). Accordingly, that

branch of Chad’s motion seeking summary judgment on its claim for contractual indemnity is

denied.

Chad moved also for summary judgment on its claim for common law indemnity. As Chad

argued, “[t]o be entitled to common law indemnification, a party must show that it has been held

vicariously liable without proof of any negligence or actual supervision on its part, and that the

indemnitor was either negligent or had the authority to direct, supervise and control the work

giving rise to the injury.” (Chad SJ Br. at 20 (citing New York caselaw)); see also Matzinger v.

MAC II, LLC, No. 17-CV-4813, 2018 WL 3350328, at *2 (S.D.N.Y. July 9, 2018) (“[A] party

cannot obtain common law indemnification unless it has been held to be vicariously liable without

proof of any negligence or actual supervision on its own part.” (internal citations omitted)). Under

New York law, “common-law indemnity is ‘barred altogether where the party seeking

indemnification was itself at fault, and both tortfeasors violated the same duty to the plaintiff.’”

Amguard Ins. Co. v. Getty Realty Corp., 147 F. Supp. 3d 212, 220 (S.D.N.Y. 2015) (quoting

Monaghan v. SZS 33 Associates, L.P., 73 F.3d 1276, 1284 (2d Cir. 1996)). Because the Court

simply cannot determine on the present record whether Chad was negligent, or actually supervised

the subject work, this branch of Chad’s motion is likewise denied.

II. Hilt’s Motion for Summary Judgment

Hilt’s motion for summary judgment contends that Plaintiff’s action is barred by the

Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq. (“FSIA”); that Plaintiff’s first claim

for relief fails because Chad is free of negligence as a matter of law; and that Plaintiff’s second

and third claims under Labor Law §§ 240 and 241 should be dismissed under the exemptions set

forth therein. Hilt further seeks dismissal of the Third-Party Complaint on the grounds that either

dismissal of Plaintiff’s Complaint renders the Third-Party Complaint moot, or because Chad’s

failure to produce a witness will result in preclusion of any claims against Hilt. Finally, Hilt seeks

summary judgment dismissing the fourth claim for relief in the Third-Party Complaint for breach

of contract.

Hilt’s FSIA argument that Plaintiff’s action is barred because the contract for the

renovation of a diplomat’s residence is not a “commercial activity” fails as a matter of law, as the

parties are aware. Hilt Constr. & Mgmt. Corp. v. Permanent Mission of Chad to the United Nations

in New York, No. 15-CV-8693, 2016 WL 3351180, at *4 (S.D.N.Y. June 15, 2016) (denying

motion to dismiss in an action between the same two parties and holding that the FSIA was not a

bar to an action concerning a construction contract between Chad and Hilt for renovation of a

diplomat’s residence because “[c]onstruction contracts are undeniably commercial” (internal

citations and quotation marks omitted)). Hilt’s arguments concerning Plaintiff’s negligence and

Labor Law claims fail for all of the same reasons set forth above concerning Chad’s arguments on

the same grounds.

Because the Court declines to dismiss Plaintiff’s Complaint, Hilt’s argument that the Third-

Party Complaint is rendered moot must fail. Hilt’s alternative argument that Chad’s failure to

produce a witness mandates dismissal of the Third-Party Complaint is likewise denied, as the Court

addresses Chad’s failure to produce a witness infra in connection with Plaintiff’s cross-motion for

sanctions.

Hilt’s argument concerning Chad’s fourth claim for relief for breach of contract is not a

model of clarity. A review of the Construction Contract reveals that Hilt was required to obtain an

endorsement to its general liability insurance policy to cover its obligations under the indemnity

section of the Construction Contract. (Construction Contract § 5.3). As set forth above, the

indemnity section is triggered by a finding that Hilt was negligent, which is an unresolved issue of

fact; and because Chad has failed to produce a witness to testify to fact issues that have been raised

on the instant motions, the record does not support an award of summary judgment. Accordingly,

the extent to which Chad may recover for breach of the provision concerning procuring and

providing insurance for Chad, if at all, is reserved for trial.

III. Sanctions

Plaintiff moves to strike Chad’s Answer pursuant to Federal Rule of Civil Procedure 37,

or in the alternative, for an Order granting a default judgment against Chad; an Order directing

that Plaintiff’s claims be taken as established for purposes of the action; an Order prohibiting Chad

from opposing Plaintiff’s claims, or introducing evidence seeking to refute plaintiff’s Labor Law

and negligence claims; or, a missing witness charge at the time of trial. The ground for Plaintiff’s

motion is that Chad failed and refused to ever produce a single witness for a deposition in the

action, notwithstanding multiple Orders to do so. (Pl. Br. at 2, 13-15).

Discovery in this action was supervised by Magistrate Judge Smith under Judge Karas’s

Order of Reference (Doc. 19). At a November 8, 2018 status conference, the Court ordered non-

expert depositions to be completed by February 15, 2019. (Ecker Decl. Ex. 10 at 4). On January

22, 2019, the Court extended discovery deadlines and ordered non-expert depositions to be

completed by March 28, 2019. (Id. at 6). On March 11, 2019, the Court again extended the deadline

for fact and non-expert depositions to May 3, 2019. (Id. at 7). At a status conference on April 26,

2019, Chad’s counsel advised the Court of challenges in securing permission for the Ambassador

to testify on behalf of Chad. (Ecker Decl. Ex. 3 at 4:25; 5:1-12). At a June 11, 2019 conference,

after the close of fact discovery, Judge Smith raised the issue of Chad’s failure to produce a witness

for deposition, and warned of the possibility of a missing witness charge at trial. (Ecker Decl. Ex.

4 at 4:1-12). By e-mail dated September 16, 2019, Chad’s counsel advised Plaintiff’s counsel that

a representative on behalf of Chad would be available to testify between that date and September

27, 2019, when the United Nations General Assembly was in session. (Ecker Decl. Ex. 6). Chad

failed to produce a witness in that ten-day period identified by Chad’s counsel.

At the final conference held before Judge Smith on September 27, 2019, having failed to

produce a witness for deposition, the Court instructed Chad’s counsel that it was the “drop-dead

date” to produce a witness on Chad’s behalf. (Ecker Decl. Ex. 7 at 3:14). The Court noted that it

believed Chad’s counsel had done everything to get its client to produce a witness for deposition,

but in order to move the case forward, dates were set for the filing of pre-motion letters for leave

to file dispositive motions. (Id. at 3:15-4:2). Judge Smith further noted that if counsel received a

response from its client, Chad could move before Judge Karas for leave to take a belated

deposition. (Id.). To date, there is no indication that Chad ever produced a witness or sought

permission for a belated deposition. Nor did Chad seek a protective order from the Court on the

basis of diplomatic immunity or otherwise. (Pl. Br. at 15). On January 16, 2020, Judge Karas set

a briefing schedule for, inter alia, the instant cross-motion for sanctions. (Jan. 16, 2020 Min. Entry;

Doc. 55).

Here, the Court finds that imposition of sanctions is appropriate. As to willfulness, Chad’s

counsel made it clear to the Court that despite its numerous communications attempting to obtain

a witness for its client, Chad remained unresponsive. (Ecker Decl. Ex. 4 at Ex. 4 at 4:1-23; id. Ex.

7 at 2:19-3:16). The defense of diplomatic immunity does not justify Chad’s failure to

communicate with counsel as to its discovery obligations in this lawsuit. See Brill v. Queens

Lumber Co., Inc., No. 10-CV-1975, 2012 WL 441287 (E.D.N.Y. Feb. 10, 2012) (“[The defendant]

was clearly aware of the existence of this lawsuit and of his status as a defendant in the case. . . .

His subsequent failure to communicate with counsel and his failure to notify the court and counsel

of a change in address are evidence of his willful refusal to participate in the case and not a valid

excuse.”).

The length of Chad’s noncompliance also supports the imposition of sanctions. “There is

no absolute measure by which to determine whether the delay is significant. Rather, the

determination is case-specific: significant delay can range from weeks to years depending upon

the circumstances.” Vazquez v. Davis, No. 12-CV-7630, 2014 WL 5089457, at *5 (S.D.N.Y. Sept.

19, 2014). Here, Plaintiff was delayed for more than a year in taking Chad’s deposition, and still

Chad has not produced a witness for a belated deposition, despite the Court’s invitation to move

for leave to do so. See Hutcheon v. Farnum, No. 18-CV-00203, 2019 WL 7971873, at *3

(N.D.N.Y. Nov. 4, 2019) (imposing harsh sanctions in case where plaintiff failed to comply with

discovery obligations, in part because “witness’ and parties’ recollection of the[] events

[underlying the action] has likely faded and will continue to fade”), adopted by 2020 WL 90786

(N.D.N.Y. Jan. 8, 2020); Jin Fang Luo v. Panarium Kissena Inc., No. 15-CV-3642, 2019 WL

360099, at *3 (E.D.N.Y. Jan. 11, 2019) (finding harsh sanctions warranted for the defendants’

failure to respond to discovery in part because the defendant’s “unjustified prolongation of this

action . . . caused memories to fade, evidence to become stale or lost, and in these and other ways,

[caused] prejudice” (internal quotation marks omitted)), adopted by 2019 WL 356939 (E.D.N.Y.

Jan. 29, 2019).

While a sanction is clearly appropriate, the Court does not find imposition of the harshest

sanction sought—that is, striking Chad’s Answer—warranted here because the Court cannot

conclude that lesser sanctions than striking Chad’s Answer would not be effective.

Rather, the Court finds that preclusion is an appropriate sanction based on the particular

facts of this case. As set forth above, Chad has failed and refused to produce a witness, depriving

Plaintiff of the opportunity to obtain relevant and necessary testimony from Chad on matters that

go to the very heart of this case: the nature and purpose of the premises, the scope of its supervision

at the construction site and input on Plaintiff’s methods, how the work was to be performed, and

at what location the work was to be performed, and its knowledge of the conditions of the

construction site, among other topics. Under these circumstances, merely awarding Plaintiff his

expenses will not cure the prejudice he has suffered. The information at issue is uniquely within

Chad’s personal knowledge, and despite multiple Court Orders and warnings of the consequences

of failing to produce a witness, Chad has persisted in its refusal. Under these circumstances, the

Court finds it necessary to preclude Chad from offering a representative witness to testify on its

behalf at trial. See Reilly v. Natwest Markets Grp. Inc., 181 F.3d 253, 269 (2d Cir. 1999) (finding

district court did not abuse its discretion in precluding trial testimony from two witnesses where

the plaintiff had been prejudiced by his lack of an opportunity to depose them). Any lesser sanction

would put Plaintiff, through no fault of his own, at an unjustified disadvantage and could result in

trial by ambush, the very thing the Federal Rules of Civil Procedure are designed to avoid. See

Ginns v. Towle, 361 F.2d 798, 801 (2d Cir. 1966) (“The basic purpose of the federal rules,

particularly those concerning discovery and disclosure, is to eliminate trial by ambush . . . .”).

However, the Court will not prevent Chad from introducing other evidence, apart from its

own testimony. To the extent that such evidence was timely produced to Plaintiff and is otherwise

admissible, he has suffered no prejudice, and the preclusion of such other evidence would be

unduly harsh. See Volkart Bros. v. M/V Palm Trader, 130 F.R.D. 285, 290 (S.D.N.Y. 1990)

(sanctions, including preclusion, should be limited to only those “necessary to rebuke [the

sanctioned party’s] non-compliance and to facilitate [the injured party’s] litigation of this case

without the requested information”).

In connection therewith, the Court will also give a “missing witness” charge to the jury at

trial. A court may exercise its discretion and give a missing witness charge when “a party has it

peculiarly within his power to produce witnesses whose testimony would elucidate the transaction”

yet the party fails to call those witnesses. United States v. Torres, 845 F.2d 1165, 1169 (2d Cir.

1988) (internal citations and quotation marks omitted). The charge allows the jury to draw an

adverse inference that the testimony of the witnesses would have been unfavorable to that

party. Id.; Sagendorf-Teal v. Cty. of Rensselaer, 100 F.3d 270, 275-76 (2d Cir. 1996). The Court

will defer decision, however, on the precise language of the adverse inference instruction at least

until the parties’ final pretrial conference, and may defer further wordsmithing until the charge

conference at trial. See Ramgoolie v. Ramgoolie, No. 16-CV-3345, 2018 WL 5619959, at *14

(S.D.N.Y. Aug. 3, 2018) (recommending that the Court instruct the jury at trial that it is permitted,

but not required, to infer that the undisclosed evidence would have been unfavorable to Defendant),

adopted as modified by 2018 WL 4266015 (S.D.N.Y. Sept. 6, 2018) (deferring decision on the

exact language of the adverse inference instruction until final pretrial conference and noting further

modifications may be appropriate at the charge conference).

The Court further finds that Chad must bear Plaintiff’s expenses incurred as a result of the

failure to attend a deposition in September 2019, if any. Rule 37(d)(3) “provides that a court ‘must’

require that the party who improperly fails to attend a deposition, or its attorney, to pay ‘attorney’s

fees’ as part of the ‘reasonable expenses’ required to be awarded under that rule.” John Wiley &

Sons, Inc. v. Book Dog Books, LLC, 298 F.R.D. 145, 151 (S.D.N.Y. 2014) (quoting Fed. R. Civ.

P. 37(d)(3)); see also Scott-Iverson v. Indep. Health Ass’n, Inc., No. 13-CV-451, 2016 WL

1458239, at *1 (W.D.N.Y. Apr. 14, 2016) (Rule 37(d)(3) “requires the court to award reasonable

expenses including attorneys [sic] fees to the prevailing party unless the failure was substantially

justified or an award of expenses would be unjust”). Here, Chad’s failure to produce a witness for

deposition, and its suggestion it would produce a witness in a ten-day window in September 2019

but then did not, was not substantially justified. Chad has not identified any other circumstances

that would render the imposition of a monetary sanction unjust in this case. The Court thus must

require either Chad or its counsel to pay Plaintiff’s reasonable expenses.

In this case, because Chad’s counsel undertook several good faith efforts to contact Chad

and urge it to produce a witness, but was unable to do so as a result of Chad’s conduct, the Court

does not find that Chad’s counsel should be required to pay Plaintiff’s expenses. Instead, the Court

will require payment from Chad. Moore v. Peters, No. 13-CV-06271, 2021 WL 248011, at *5

(W.D.N.Y. Jan. 26, 2021). Plaintiff is directed to submit documentation of his reasonable

expenses, if any, incurred as a result of Chad’s failure to attend a deposition in September 2019,

within thirty days of entry of this Memorandum Opinion and Order. Any response shall be filed

within fourteen days thereafter.

CONCLUSION

For the foregoing reasons, the Court DENIES Hilt’s and Chad’s motions for summary

judgment (Docs. 59, 65). The Court GRANTS in part Plaintiffs cross-motion for sanctions as set

forth herein. (Doc. 82). The parties’ request for oral argument on the motions is DENIED as

unnecessary. (Doc. 74).

The parties are directed to appear for a pre-trial conference to be held via telephone on May

25, 2021 at 09:30 a.m. At the time of the scheduled conference, all parties shall call the following

number: (888) 398-2342; access code 3456831.

The Clerk of Court is respectfully requested to terminate the pending motions (Docs. 59,

65, 82).

SO ORDERED:

Dated: White Plains, New York /

March 15, 2021

Philip M. Halpern

United States District Judge

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