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INFANT CAN BE LIABLE FOR INJURY CAUSED BY A DOG OWNED BY HIS FATHER; PUNITIVE DAMAGES CLAIM PROPERLY SURVIVED MOTION FOR SUMMARY JUDGMENT.

The Fourth Department determined a 17-year-old (Taquilo) could be liable for a dog bite, despite the fact that the dog was owned by his father (Rogelio). The court further determined the punitive damages claim against Taquilo properly survived the motion for summary judgment:

We reject defendants’ contention that Taquilo is relieved of potential liability for the child’s injuries based upon Taquilo’s age at the time of the incident. “It is elementary in this State that an infant may be held civilly liable for damages caused by his [or her] tortious acts” … , and defendants cite no authority to support their contention that an infant cannot be subject to strict liability for harm caused by an animal. Nor is it dispositive that the dog was owned by Taquilo’s father, Rogelio. “Strict liability can . . . be imposed against a person other than the owner of an animal which causes injury if that person harbors or keeps the animal with knowledge of its vicious propensit[ies]” … . Here, defendants’ own submissions raise issues of fact whether Taquilo harbored the dog … , and whether he knew or should have known of the dog’s vicious propensities … . Cruz v Stachowski, 2016 NY Slip Op 06327, 4th Dept 9-30-16

ANIMAL LAW (DOG BITE, INFANT CAN BE LIABLE FOR INJURY CAUSED BY A DOG OWNED BY HIS FATHER; PUNITIVE DAMAGES CLAIM PROPERLY SURVIVED MOTION FOR SUMMARY JUDGMENT)/DOG BITE (INFANT CAN BE LIABLE FOR INJURY CAUSED BY A DOG OWNED BY HIS FATHER; PUNITIVE DAMAGES CLAIM PROPERLY SURVIVED MOTION FOR SUMMARY JUDGMENT)/PUNITIVE DAMAGES (DOG BITE, INFANT CAN BE LIABLE FOR INJURY CAUSED BY A DOG OWNED BY HIS FATHER; PUNITIVE DAMAGES CLAIM PROPERLY SURVIVED MOTION FOR SUMMARY JUDGMENT)

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AN AGGRIEVED PARTY NEED NOT SHOW PECUNIARY LOSS TO WARRANT AN AWARD OF SANCTIONS OR ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT.

The Second Department affirmed the sanctions/attorney’s fees awarded for frivolous conduct. The court noted that an aggrieved party need not demonstrate pecuniary loss to warrant an award and an attorney who represents himself defending against frivolous conduct is entitled to an award:

A court may award a party “costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct” (22 NYCRR 130-1.1[a]). “In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct” (22 NYCRR 130-1.1[a]). The decision whether to impose costs or sanctions against a party for frivolous conduct, and the amount of any such costs or sanctions, is generally entrusted to the court’s sound discretion … . * * *

While compensatory sanctions should correspond at least to some degree to the amount of damages, the aggrieved party is not always required to show ” actual pecuniary loss'”… . …

An attorney … , who represents himself, may recover fees for ” the professional time, knowledge and experience . . . which he would otherwise have to pay an attorney for rendering'” … . Board of Mgrs. of Foundry at Wash. Park Condominium v Foundry Dev. Co., Inc., 2016 NY Slip Op 06189, 2nd Dept 9-28-16

 

ATTORNEYS (AN AGGRIEVED PARTY NEED NOT SHOW PECUNIARY LOSS TO WARRANT AN AWARD OF SANCTIONS OR ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT)/CIVIL PROCEDURE (FRIVOLOUS CONDUCT, AN AGGRIEVED PARTY NEED NOT SHOW PECUNIARY LOSS TO WARRANT AN AWARD OF SANCTIONS OR ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT)/FRIVOLOUS CONDUCT (AN AGGRIEVED PARTY NEED NOT SHOW PECUNIARY LOSS TO WARRANT AN AWARD OF SANCTIONS OR ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT)

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IN THIS CIVIL RIGHTS ACTION, PRIOR APPELLATE RULING THAT THE SEARCH WARRANT WAS INVALID BECAME THE LAW OF THE CASE; TRIAL COURT’S FINDING THE WARRANT VALID AND GRANTING A DIRECTED VERDICT IN FAVOR OF THE POLICE REVERSED.

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Acosta, over a two-justice dissent, determined the First Department’s prior ruling that a search warrant was invalid was the law of the case. The trial court had ruled new evidence demonstrated the validity of the warrant and granted a directed verdict in favor of the defendants (the city and police officers who procured and executed the search warrant). The plaintiffs, who had been pushed to the floor at gunpoint, handcuffed, and held for three hours while their apartment was searched (and trashed), sued alleging the violation of their civil rights:

This case gives us the opportunity to emphasize that when an issue is specifically decided on a motion for summary judgment, that determination is the law of the case. As such, the trial court, as well as the parties, are bound by it “absent a showing of subsequent evidence or change of law” … . Applying this rule to the case at hand, we specifically found in Delgado v City of New York (86 AD3d 502, 508 [1st Dept 2011] [Delgado I]), that the no-knock search warrant at issue was not valid. Thus, the trial court was bound by that determination absent the introduction of subsequent evidence to show otherwise. The evidence that was introduced at trial on the validity of the warrant, however, was not significantly different from what was previously before the court on the motion for summary judgment. Accordingly, the trial court erred in deeming the warrant valid and granting defendants’ motion for a directed verdict in their favor. * * *

Whether this Court’s conclusion regarding the validity of the search warrant in Delgado I was erroneously reached is irrelevant. The law of the case precluded the trial court from re-examining the issue (see Carmona, 92 AD3d at 492-493), and it was therefore bound by our conclusion regardless of its views on our analysis … .

At the very least, the issue as to the validity of the search warrant should have gone before the jury since the additional evidence adduced at trial did not significantly alter our analysis. Instead, acting essentially as an appellate court, the trial court effectively reversed this Court’s finding on the validity of the warrant. Delgado v City of New York, 2016 NY Slip Op 06185, 1st Dept 9-27-16

 

CIVIL PROCEDURE (IN THIS CIVIL RIGHTS ACTION, PRIOR APPELLATE RULING THAT THE SEARCH WARRANT WAS INVALID BECAME THE LAW OF THE CASE; TRIAL COURT’S FINDING THE WARRANT VALID AND GRANTING A DIRECTED VERDICT IN FAVOR OF THE POLICE REVERSED)/CIVIL RIGHTS LAW (PRIOR APPELLATE RULING THAT THE SEARCH WARRANT WAS INVALID BECAME THE LAW OF THE CASE; TRIAL COURT’S FINDING THE WARRANT VALID AND GRANTING A DIRECTED VERDICT IN FAVOR OF THE POLICE REVERSED)/CRIMINAL LAW ((IN THIS CIVIL RIGHTS ACTION, PRIOR APPELLATE RULING THAT THE SEARCH WARRANT WAS INVALID BECAME THE LAW OF THE CASE; TRIAL COURT’S FINDING THE WARRANT VALID AND GRANTING A DIRECTED VERDICT IN FAVOR OF THE POLICE REVERSED)/LAW OF THE CASE (IN THIS CIVIL RIGHTS ACTION, PRIOR APPELLATE RULING THAT THE SEARCH WARRANT WAS INVALID BECAME THE LAW OF THE CASE; TRIAL COURT’S FINDING THE WARRANT VALID AND GRANTING A DIRECTED VERDICT IN FAVOR OF THE POLICE REVERSED)

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COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT.

The Second Department, reversing Supreme Court, determined plaintiff stated causes of action for sexual harassment and retaliatory firing. The Second Department noted that Supreme Court erred by relying on defenses to action, which are relevant only to a summary judgment motion, not a motion to dismiss. The Second Department further explained how a motion to dismiss is to be handled when (as here) documentary evidence is submitted in opposition:

The court erred in determining that the subject cause of action must be dismissed because the plaintiff failed to show that the behavior of her supervisor constituted more than a petty slight or trivial inconvenience. The plaintiff does not have this burden. Rather, a contention that the behavior was a petty slight or trivial inconvenience constitutes an affirmative defense … , which should be raised in the defendants’ answer, and does not lend itself to a pre-answer motion to dismiss … . A motion to dismiss merely addresses the adequacy of the pleading, and does not reach the substantive merits of a party’s cause of action. “Therefore, whether the pleading will later survive a motion for summary judgment, or whether the party will ultimately prevail on the claims, is not relevant on a pre-discovery motion to dismiss” … . * * *

“When evidentiary material is considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion has not been converted to one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” .. .

Kaplan v New York City Dept. of Health & Mental Hygiene, 2016 NY Slip Op 06063, 2nd Dept 9-21-16

 

EMPLOYMENT LAW (SEXUAL HARASSMENT AND RETALIATION, COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)/CIVIL RIGHTS LAW (EMPLOYMENT LAW, SEXUAL HARASSMENT, SEXUAL HARASSMENT AND RETALIATION, COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)/SEXUAL HARASSMENT (EMPLOYMENT LAW, SEXUAL HARASSMENT AND RETALIATION, COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)/RETALIATION (EMPLOYMENT LAW, SEXUAL HARASSMENT AND RETALIATION, COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)/SEXUAL HARASSMENT EMPLOYMENT LAW, SEXUAL HARASSMENT AND RETALIATION, COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)/CIVIL PROCEDURE (MOTION TO DISMISS, COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)/DISMISS, MOTION TO (CIVIL, COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)SUMMARY JUDGMENT (COURT SHOULD NOT CONSIDER DEFENSES TO AN ACTION ON A MOTION TO DISMISS, WHETHER THE ACTION WOULD SURVIVE A MOTION FOR SUMMARY JUDGMENT IS NOT BEFORE THE COURT)

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FRIVOLOUS CONDUCT WARRANTED AWARD OF ATTORNEY’S FEES, CRITERIA EXPLAINED.

The Second Department determined plaintiff’s frivolous conduct (delaying discontinuance) warranted the award of attorney”s fees to the respondent. The court explained the criteria for finding frivolous conduct:

“The court rule set forth in 22 NYCRR 130-1.1, which is intended to limit frivolous and harassing behavior, authorizes a court, in its discretion, to award a party in a civil action reasonable attorney’s fees resulting from frivolous conduct” … . Conduct is frivolous if, inter alia, it is “completely without merit in law” or “undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” (22 NYCRR 130-1.1[c][1], [2]…). “In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party” (22 NYCRR 130-1.1[c]). Hutter v Citibank, N.A., 2016 NY Slip Op 06062, 2nd Dept 9-21-16

CIVIL PROCEDURE (FRIVOLOUS CONDUCT WARRANTED AWARD OF ATTORNEY’S FEES)/FRIVOLOUS CONDUCT (FRIVOLOUS CONDUCT WARRANTED AWARD OF ATTORNEY’S FEES)

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QUESTION OF FACT WHETHER LATE NOTICE DEFENSE WAIVED BY FAILURE TO RAISE THE DEFENSE IN DISCLAIMER LETTERS; MOTION TO ADD DEFENSE TO ANSWER PROPERLY GRANTED.

The Court of Appeals, in a brief memorandum decision, determined there was a question of fact whether defendant insurance company waived the late-notice defense by not mentioning the defense in the disclaimer letters. The defense had been raised in earlier communications. Therefore defendants’ motion to add the defense in an amended answer was properly granted:

Analyzing the circumstances under the common-law waiver standard, which requires an examination of all factors, defendants cannot be said to have waived their right to assert the late-notice defense as a matter of law by failing to specifically identify late notice in their disclaimer letters. Defendants identified the late-notice defense in early communications with plaintiff before relying on a reservation of rights in two disclaimer letters. “[U]nder common-law principles, triable issues of fact exist whether defendants clearly manifested an intent to abandon their late-notice defense” (Keyspan Gas E. Corp. v Munich Reins. Am., Inc., 23 NY3d 583, 591 [2014]). Accordingly, Supreme Court properly granted defendants’ motion for leave to amend their answer to reassert the affirmative defense of late notice. Estee Lauder Inc. v OneBeacon Ins. Group, LLC, 2016 NY Slip Op 06012, CtApp 9-15-16

INSURANCE LAW (QUESTION OF FACT WHETHER LATE NOTICE DEFENSE WAIVED BY FAILURE TO RAISE THE DEFENSE IN DISCLAIMER LETTERS; MOTION TO ADD DEFENSE TO ANSWER PROPERLY GRANTED)/CIVIL PROCEDURE (INSURANCE LAW, WAIVER, QUESTION OF FACT WHETHER LATE NOTICE DEFENSE WAIVED BY FAILURE TO RAISE THE DEFENSE IN DISCLAIMER LETTERS; MOTION TO ADD DEFENSE TO ANSWER PROPERLY GRANTED)/WAIVER (QUESTION OF FACT WHETHER LATE NOTICE DEFENSE WAIVED BY FAILURE TO RAISE THE DEFENSE IN DISCLAIMER LETTERS; MOTION TO ADD DEFENSE TO ANSWER PROPERLY GRANTED)

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FAILURE TO PRESERVE VIDEO OF UNDERLYING INCIDENT DID NOT WARRANT STRIKING THE ANSWER.

The Second Department, modifying Supreme Court, determined striking the answer was too severe a sanction for failure to preserve a video of the underlying incident (spoliation). The court noted that the plaintiff could still prove his case without the video recording. Therefore, an adverse inference jury instruction was an appropriate sanction:

“Under the common-law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence” … . “The party requesting sanctions for spoliation has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised its ability to'” prove its claim or defense … . However, ” striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct'” and, thus, the courts must ” consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness'” … . “When the moving party is still able to establish or defend a case, a less severe sanction is appropriate” … . Peters v Hernandez, 2016 NY Slip Op 05983, 2nd Dept 9-14-16

CIVIL PROCEDURE (FAILURE TO PRESERVE VIDEO OF UNDERLYING INCIDENT DID NOT WARRANT STRIKING THE ANSWER)/EVIDENCE (SPOLIATION, FAILURE TO PRESERVE VIDEO OF UNDERLYING INCIDENT DID NOT WARRANT STRIKING THE ANSWER)/SPOLIATION (FAILURE TO PRESERVE VIDEO OF UNDERLYING INCIDENT DID NOT WARRANT STRIKING THE ANSWER)

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SUMMARY JUDGMENT CANNOT REST ON GAPS IN THE OPPOSING PARTY’S PAPERS; MOVING PARTY MUST ADDRESS EVERY NECESSARY ELEMENT WITH SUBSTANTIVE PROOF.

The Second Department, in a dispute among business partners, determined certain motions for summary judgment should not have been granted. The court explained that summary judgment cannot rest on gaps in the opposing party’s proof. A defendant bringing the motion must make out a prima facie case by addressing every issue raised in the pleadings. Where every issue is not addressed with substantive proof, the motion must be denied without reference to the opposing papers:

“[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” … . In this case, the individual defendants failed to affirmatively demonstrate, prima facie, that they did not breach any fiduciary duty owed to the plaintiffs during the course of all of the transactions or occurrences described in the amended complaint … . Similarly, the individual defendants failed to affirmatively establish, prima facie, that the plaintiffs did not sustain any damages as a result of their alleged misconduct … .

Furthermore, the submissions of the individual defendants were insufficient to establish, prima facie, that the application of the business judgment rule protected all of the transactions or occurrences described in the amended complaint from judicial scrutiny. * * * The individual defendants’ representations that all of the challenged conduct outlined in the amended complaint was performed in furtherance of the Partnership’s legitimate interests were conclusory, unsubstantiated, and, without more, amounted to bare legal conclusions that were insufficient to establish that the business judgment rule barred judicial inquiry into these matters … . Katz v Beil, 2016 NY Slip Op 05977, 2nd Dept 9-14-16

 

CIVIL PROCEDURE (SUMMARY JUDGMENT, EVIDENCE, SUMMARY JUDGMENT CANNOT REST ON GAPS IN THE OPPOSING PARTY’S PAPERS; MOVING PARTY MUST ADDRESS EVERY NECESSARY ELEMENT WITH SUBSTANTIVE PROOF)/EVIDENCE (SUMMARY JUDGMENT, SUMMARY JUDGMENT CANNOT REST ON GAPS IN THE OPPOSING PARTY’S PAPERS; MOVING PARTY MUST ADDRESS EVERY NECESSARY ELEMENT WITH SUBSTANTIVE PROOF)/SUMMARY JUDGMENT (SUMMARY JUDGMENT CANNOT REST ON GAPS IN THE OPPOSING PARTY’S PAPERS; MOVING PARTY MUST ADDRESS EVERY NECESSARY ELEMENT WITH SUBSTANTIVE PROOF)

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PURPORTED RISK OF WAIVER OF RIGHT TO COMPEL ARBITRATION WAS NOT A REASONABLE EXCUSE FOR A DELAY IN ANSWERING THE COMPLAINT; MOTION TO VACATE DEFAULT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendants’ motion to vacate a default judgment should not have been granted. The defendants failed to offer a reasonable excuse for the six-month delay in answering. The court rejected the argument that a timely answer would have risked waiver of the right to compel arbitration:

The defendants asserted that they did not serve a timely answer because, “[h]ad [they] served an answer, they risked waiving the right to compel arbitration.” This excuse was not reasonable given the procedural means that were available to the defendants to avoid default while preserving their right to demand arbitration of the dispute (see CPLR 7503[a]; see also CPLR 3211[a], [f]…). Duprat v BMW Fin. Servs., NA, LLC, 2016 NY Slip Op 05970, 2nd Dept 9-14-16

CIVIL PROCEDURE (PURPORTED RISK OF WAIVER OF RIGHT TO COMPEL ARBITRATION WAS NOT A REASONABLE EXCUSE FOR A DELAY IN ANSWERING THE COMPLAINT; MOTION TO VACATE DEFAULT SHOULD NOT HAVE BEEN GRANTED)/ARBITRATION (PURPORTED RISK OF WAIVER OF RIGHT TO COMPEL ARBITRATION WAS NOT A REASONABLE EXCUSE FOR A DELAY IN ANSWERING THE COMPLAINT; MOTION TO VACATE DEFAULT SHOULD NOT HAVE BEEN GRANTED)/DEFAULT JUDGMENT (PURPORTED RISK OF WAIVER OF RIGHT TO COMPEL ARBITRATION WAS NOT A REASONABLE EXCUSE FOR A DELAY IN ANSWERING THE COMPLAINT; MOTION TO VACATE DEFAULT SHOULD NOT HAVE BEEN GRANTED)

SUPPLEMENTAL BILL OF PARTICULARS PROPERLY SERVED WITHOUT LEAVE OF COURT; UNDER THE CIRCUMSTANCES, SUPPLEMENTAL BILL SHOULD NOT HAVE BEEN STRUCK BASED UPON PLAINTIFF’S FAILURE TO APPEAR AT A DEPOSITION. 

The Second Department, reversing Supreme Court, determined the supplemental bill of particulars served by plaintiff was not an amended bill of particulars (which would have required leave of court) and plaintiff’s failure to appear at a deposition scheduled one day before a mediation (which was not fruitful) did not amount to willful and contumacious conduct and did not, therefore, warrant striking the supplemental bill of particulars:

Pursuant to CPLR 3043(b), “[a] party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities,” with the proviso that “no new cause of action may be alleged or new injury claimed” (CPLR 3043[b] [emphasis added]). Moreover, the statute provides that supplemental bills of particulars may be served 30 days or more prior to trial without leave of court, and that the opposing party is entitled to an opportunity for further disclosure regarding the continuing damages and disabilities. * * *

While the striking of a pleading or the preclusion of evidence may be appropriate in those instances where parties engage in the chronic or repeated obstruction of discovery, thereby evidencing a willful disregard of legitimate disclosure requests and court orders … , the plaintiff’s failure to appear for a further deposition on the stipulated date does not, under the circumstances presented, rise to such a level of misconduct. Moreover, the record does not demonstrate any other discovery violations by the plaintiff. Accordingly, no willful and contumacious conduct was established … . Alicino v Rochdale Vil., Inc., 2016 NY Slip Op 05966, 2nd Dept 9-14-16

 

CIVIL PROCEDURE (SUPPLEMENTAL BILL OF PARTICULARS PROPERLY SERVED WITHOUT LEAVE OF COURT; UNDER THE CIRCUMSTANCES, SUPPLEMENTAL BILL SHOULD NOT HAVE BEEN STRUCK BASED UPON PLAINTIFF’S FAILURE TO APPEAR AT A DEPOSITION)/BILL OF PARTICULARS (SUPPLEMENTAL BILL OF PARTICULARS PROPERLY SERVED WITHOUT LEAVE OF COURT; UNDER THE CIRCUMSTANCES, SUPPLEMENTAL BILL SHOULD NOT HAVE BEEN STRUCK BASED UPON PLAINTIFF’S FAILURE TO APPEAR AT A DEPOSITION)/WILLFUL AND CONTUMACIOUS (SUPPLEMENTAL BILL OF PARTICULARS PROPERLY SERVED WITHOUT LEAVE OF COURT; UNDER THE CIRCUMSTANCES, SUPPLEMENTAL BILL SHOULD NOT HAVE BEEN STRUCK BASED UPON PLAINTIFF’S FAILURE TO APPEAR AT A DEPOSITION)

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