No one likes to move. The process of packing one's belongings and relocating one's self and family is often quite tedious and stressful, not to mention the damage to personal property that inevitably results. But, who would imagine a move costing almost four million dollars?
In Perez v. Time Moving & Storage, Ms. Leonar Datil Perez alleged that her collection of newspapers, dating back to the Civil War, were damaged when they were exposed to the rain due to a delayed pickup by the moving company. In her lawsuit filed with the New York County Supreme Court, Ms. Perez is seeking the recovery of damages in the amount of $3.9 million.
During pre-trial disclosure, Ms. Perez sought to have Joseph Candella, Time's principal and co-owner, barred from attending depositions of the moving company's employees. The unrepresented Plaintiff claimed that Mr. Candella's presence "intimidated" the plaintiff and the moving's company employees and that the principal disrupted the questioning process with notes and repeated conferences with his counsel. Ms. Perez also informed the trial court that she felt at a "disadvantage" by having Candella present during the questioning process.
On motion, the trial court elected to bar Mr. Candella's presence at the depositions and indicated as follows:
We have a pro se plaintiff in the presence of the attorney for the defendant and the principal and the employees. I believe it is not appropriate under these circumstances. I am not certain what exactly would be accomplished for the defendant to have the principal present since obviously there will be a transcript of the testimony and the attorney is present during the deposition to tell the principal whatever testimony his employees gave.Candella asserted the right to be present during the questioning process and argued that as the company's representative he could not be excluded unless there was a showing of "unusual" circumstances--a standard not met or established by Perez in this instance. On appeal, the Appellate Division, First Department, agreed, noting:
There is no evidentiary basis for the motion court's assumption, evidently rooted in stereotype, that simply because Candella is the boss of the employees to be deposed that his presence will intimidate them. Plainly, such an assumption does not rise to the level of an unusual circumstance....
Acknowledging the importance of a litigant's presence during the discovery-questioning process, the Appellate Division did not embrace the concept of forcing a party to rely solely on the content of a deposition transcript and observed as follows:
A transcript is a poor substitute for being present to assist counsel at the time of the deposition. Candella's absence would preclude him from educating counsel during the deposition on matters as to which he possesses knowledge superior to that of the attorney. Barring him from attending the deposition would also prevent him from fully assisting counsel in formulating a trial strategy....Although Ms. Perez was unrepresented, the appellate court did not believe she was entitled to treatment which would work to an opponent's prejudice. Espousing a standard that appears to have been long forgotten, particularly within the context of landlord-tenant cases, the Appellate Division cogently concluded, "New York law does not afford a pro se litigant additional benefits to the detriment of another party absent a reasonable explanation supported by the record of why such additional benefits are warranted...."
For a copy of the Appellate Division's decision in Perez v. Time Moving & Storage, please click on the following link:
http://www.courts.state.ny.us/reporter/3dseries/2006/2006_02827.htm