BAEC Bulletin | March/April 2023 | 36
possibility of sanctions). The Court then found that sanctions were appropriate given defendants’ non-compliance with discovery. Consequently, the Court held that defendants had forfeited any objections to plaintiff’s discovery requests, and that defendants’ failure to timely respond to plaintiff’s requests for admissions resulted in deemed admissions that defendants would not be permitted to withdraw. The Could also found that an award of costs, including attorneys’ fees, was warranted, and even ordered defendants to file a copy of the Court’s Decision and Order in any case in the Western District of New York in which they are a plaintiff or a defendant. Finally, the Court warned defendants that their failure to respond to all outstanding discovery demands may result in their answer being stricken. Motion to Enforce Settlement I n Travco Ins. Co. v. Gree U.S.A., Inc., 22-cv- 06157-FPG-MJP (Nov. 24, 2022), plaintiff’s attorney sent an email to defendants’ attorney demanding a certain sum of money to settle the case, along with additional conditions. Defendants’ attorney responded by email later that day, indicating an agreement on the settlement sum, and attaching a proposed settlement agreement for plaintiff’s signature. Plaintiff’s attorney responded by altering the terms of defendants’ proposed settlement agreement so as to directly mirror the terms of his prior email. Defendants then moved to enforce the terms of their proposed settlement agreement, claiming it complied with the terms of plaintiff’s demand. Observing that the Court has the power to enforce a settlement agreement reached in a case, and that “Courts in New York, both federal and state, have held that email exchanges constitute binding writings in the context of settlement negotiations,” the Court nonetheless denied the motion, finding that the correspondence between counsel and the edits to defendants’ proposed settlement agreement made clear that there was no meeting of the minds. As a result, the email correspondence did not constitute a binding settlement.
In Am. Builders & Contractors Supply Co., Inc. v. CR1 Contracting, LLC, 20-cv-06302-EAW (Nov. 7, 2022), following entry of a default judgment, plaintiff served an information subpoena on one of the defendants seeking disclosure about defendants’ bank accounts, business records, assets, accounts receivables and debts. Defendant was personally served with the information subpoena and acknowledged receipt, but failed to respond. Plaintiff then moved to compel, and defendant failed to oppose. Noting that post- judgment discovery is governed by Fed. R. Civ. P. 69, which adopts the procedure of the state where the Court is located, and allows a judgment creditor to conduct a broad inquiry to uncover hidden or concealed assets of the judgment debtor, the Court found that the information subpoena was properly served, and that its content complied with CPLR 5224. Accordingly, the motion was granted, and defendant was directed to respond to the information subpoena within thirty days. Finally, the Court awarded plaintiff damages in the amount of $1,706.34, consisting of costs, a statutory penalty, and attorneys’ fees incurred in effecting compliance with the information subpoena.
ARBITRATE OR MEDIATE YOUR CASE
Since 2001, I have been honored to have been chosen to serve as a mediator or neutral arbitrator in over 3,000 claims which were pending in our court system. The vast majority of the non-binding mediations were successfully resolved. In addition to having over 30 years of experience in the litigation and trial of personal injury claims, I have lectured on behalf of the Bar Association of Erie County’s Erie Institute of Law and have given in-house presentations on
the topic of ADR. I am a past President of the Western New York Trial Lawyers Association, and a charter member of the NYSBA’s Dispute Resolution Section. I am also a Certified Federal Court Mediator. My fees are extremely reasonable, certainly a more cost effective alternative than a trial. I will be as flexible as possible in terms of scheduling and location, resulting in a quicker and more convenient resolution of your claim. MICHAEL MENARD 69 Delaware Ave., Suite 705, Buffalo, NY 14202 (716) 842-6700 | FAX: (716) 842-6707
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Information Subpoena
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