Thursday, August 16, 2007
The New York Appellate Division, First Judicial Department, decided a case today characterized by sharp words between the majority and dissenting judges. The case involved enforcement of a judgment against the Palestinian Authority and the PLO for the murder of an American citizen and his Israeli wife. The plaintiffs noticed the deposition of an attorney who was the registered foreign agent of the Authority. The trial court ordered that the deposition "take place" by January 10, 2007.
Plaintiff's counsel sought a January 9 deposition, but the deponent was not available over an extended lunch period. At the January 10 deposition, Plaintiffs' counsel claimed that the deponent spoke in an "excruciatingly slow manner" and the deposition dragged into the evening when the court reporter was unavailable. The court reversed the trial judge's order denying an extension of time to complete the deposition, stating that the dissent's "willingness to hold plaintiff's lawyer accountable for the court stenographer's inability to continue working" was "unprecedented, and an unreasonable and unrealistic expectation and expansion of a lawyer's responsibility."
The dissenter did not take the point lightly: "The majority stoops to caricature... plaintiff's counsel made a desultory, tardy and at best irresponsible effort to complete the deposition...he was entirely and inexcusably to blame for the deposition not concluding before the expiration of the deadline...the majority commits an egregious error in adopting as fact the accusation of plaintiff's counsel" as to the claim that the deponent strung the process out to prevent the completion of the deposition. (MIke Frisch)