Court Grants Sanctions For Conduct At Deposition

In an Opinion dated June 20, 2023, in Constantina Bacopoulou DDS PC v. Carnegie Dental PC, Index No. 650010/2022, Justice Andrea Masley granted Plaintiffs’ motion for sanctions against defendants for conduct during a deposition. Justice Masley concluded that defendants’ counsel violated Rules of Professional Conduct 8.4(g), which prohibits lawyers from engaging in conduct that constitutes discrimination or harassment on the basis of, inter alia, sex and Commercial Division rules barring speaking objections at depositions. The Court further appointed a special referee and directed the attorneys, who the Court found contributed to the delay and acrimony in the case, and not the clients, to split the referee’s fees 25% (plaintiffs’ counsel)-75% (defendants’ counsel). As to Defendants’ counsel conduct at the deposition, the Court explained:

Plaintiffs' motion for sanctions against Arthur Scott Porter, Esq, attorney for defendants, is granted. Porter's statements at Bronstein's deposition were clear violations of the Rules of Professional Conduct 8.4(g). [footnote omitted]. (See e.g., NYSCEF 75, Bronstein Depo tr at 23:5-9 ["Why don't you ask these questions properly?...That's your job as a professional], 23:23-25 ["Call the judge if you are upset"], 154:13-156:19 [accusing Stallone of tricking the witness and yelling], 229:25-230:5 [explaining to the witness how a deposition works remarking "this is really how we do it," apparently in contrast to how Stallone took the direct examination of the witness], 297:14-298:22 [challenging Stallone's understanding of how to take a deposition and accusing her of "putting on an act"], 448:24-449:4 [accusing Stallone of playing games], 452:25-453:9 [calling Stallone obnoxious], 458:5-14 [accusing Stallone of yelling at witness], 468:21-469:13 [accusing Stallone of interrupting him and calling Stallone obnoxious, again, directing Stallone to calm down and admonishing Stallone that she "needs a lecture"], 480:15-16 ["You have no idea what you're talking about"], 483:10-11 [accusing Stallone of asking silly questions], 512:6-12 [when Stallone asked if making these comments because she is a woman, Porter answered "Yes"].) Porter's inappropriate statements were admittedly motivated by Stallone's gender. (Id. at 512:6-9.) Such unprofessional conduct is sanctionable. (See Principe v. Assay Partners, 154 Misc 2d 702, 704 [Sup Ct, NY County 1992] [finding unprofessional conduct warranting sanctions where a male attorney stated to a female attorney: "I don't have to talk to you, little lady"; "[t]ell that little mouse over there to pipe down"; "[w]hat do you know, young girl"; "[b]e quiet, little girl"; and "[g]o away, little girl"].) Porter's admission clarifies the context of his otherwise inappropriate statements permeating the nine-hour deposition as deliberately offensive and gender based when in context.

In addition, Porter's conduct is sanctionable because he clearly and repeatedly violated Commercial Division rules barring speaking objections. (NYSCEF 75, Bronstein depo tr at 106:5-14, 109:6-111:2, 111:14- 112:2, 151:23-152:21, 154:13-156:19, 446:4-21, 448:3-18, 491:14-17, 492:18-493:12, 494:11-18, 499:11-16, 500:4-21.) He directed the witness not to answer questions. (Id. at 174:11-12, 483:6-7.) He also repeatedly cut off the witness. (See e.g. Id. at 270:16- 20, 295:17-297:13, 403:21-25 [admitting that he cuts off the witness].)

As to Plaintiffs’ counsel, the Court noted, “However, Stallone contributed to the delay with unnecessary bickering with Porter and engaged in some speaking objections as well.”

Given this decision, attorneys and parties would do well to remember to conduct themselves in a professional and courteous manner at all times and that speaking objections can lead to sanctions. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues.