[U] Unger v. Leviton

This opinion is uncorrected and will not be published in the printed Official Reports. This is an action for breach of an alleged oral partnership agreement pertaining to the purchase and resale of real property. Plaintiff moves to impose penalties pursuant to CPLR §3216 upon defendant based upon defendant's failure to testify at his deposition about the events and agreements surrounding plaintiff's conveyance to defendant of title to the subject real property and the acquisition of mortgage financing for the transaction. Defendant has asserted his privilege against self-incrimination under the Fifth Amendment of the United States Constitution, apparently based upon the threat of criminal liability for violation of a federal statute in connection with the loan application. See 18 U.S.C. §1010. (At the time of the deposition, a motion was pending in which defendant sought leave to amend his answer to interpose the defense of illegality. That motion, and a subsequent motion to renew and reargue, have been resolved by the Court, to the effect that the illegality defense has been rejected and leave to amend the answer has been denied.) The Court finds that the information sought by plaintiff is relevant and material, and thus discoverable. CPLR §3101. Although defendant cannot be compelled to answer questions which may expose him to criminal liability, the assertion of the privilege does not shield him from the adverse consequences of his non-disclosure in a civil action. See Access Capital, Inc. v. DiCicco, 302 AD2d 48. Further, the Court cannot permit defendant to use the privilege to his tactical advantage. Retaining the option to waive the privilege, defendant could subject the plaintiff to unfair surprise at trial. Accordingly, it is ORDERED, that plaintiff's motion is granted to the extent that defendant is precluded from testifying at trial on all matters as to which he has declined to testify at his deposition, or any further deposition held at least 60 days prior to trial. Plaintiff is not relieved of the burden to prove his case at trial, and defendant may cross-examine plaintiff and call other witnesses to testify in his defense.