Law Firm Is Disqualified Over 'Clandestine' Discovery
New York Law Journal
April 6, 2009
A law firm that "clandestinely" deposed two non-party witnesses in a summary holdover proceeding has been disqualified by a Manhattan judge.
On Dec. 9, 2008, Kucker & Bruh served a discovery motion on the daughter and son of Kenneth Grayson, a tenant who died after a proceeding to evict him had been initiated. Attached to the motion was a proposed subpoena, warning that "failure to comply" was "punishable as a contempt of Court."
A few days later, according to Kucker & Bruh, the wife of Mr. Grayson's son Jay, contacted a firm attorney and said her husband would voluntarily appear at the firm's offices. Unfamiliar with court procedure, and to "save time, avoid penalty or problems with the law," Mr. Grayson's daughter also went to the offices and "answered an in-depth set of questions" with a stenographer present, according to the daughter's affidavit.
After receiving word of the allegedly improper discovery, the tenant's counsel moved for sanctions. Housing Court Judge Joseph E. Capella agreed that the transcripts of the son and daughter should be suppressed. Calling Kucker & Bruh's conduct "a complete aberration of rudimentary principles of discovery" in the context of a summary proceeding, where a party must obtain leave of court before proceeding with discovery against parties and non-parties, the judge also disqualified the firm as the landlord's counsel. In his decision, the judge cited 1997 and 2000 decisions which involved discovery violations by Kucker & Bruh.
However, he said the landlord's new counsel could properly seek discovery against the son and daughter. In an interview, Sal D. Bruh said there was nothing "untoward" about eventually transcribing an interview after two non-party witnesses "volunteer[ed]" testimony, and added that the prior rulings cited did not involve "venal acts." Mr. Bruh said the firm would not appeal Judge Capella's ruling, Nagel v. Grayson, 102369/06, which will be published Thursday.
by Noeleen G. Walder