Tabberone is pronounced tab ber won
not tay ber own
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Tabberone is pronounced tab ber won |
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United States District Court, S.D. New York. Ilya GHERMAN, Plaintiff,v. Erik ESTORICK and Sevenarts, Ltd., Defendants.
No. 91 CIV. 7862 (SWK).
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MEMORANDUM OPINION AND ORDER
KRAM, District Judge. This diversity action arises out of an agreement, dated November 26, 1984, between plaintiff and defendants involving the marketing of thirteen tapestries created by plaintiff. The complaint alleges breach of contract and related claims. Defendants now move for an order, pursuant to Rule 56 of the Federal Rules of Civil Procedure, granting them summary judgment dismissing the complaint. Plaintiff opposes the motion and cross-moves for an order (1) extending discovery for a period of 60 days or until such time as the Court deems appropriate; (2) compelling defendants to provide supplemental answers to plaintiff's interrogatories; (3) compelling defendants to produce all tapestries in their possession pursuant to plaintiff's Notice for Discovery and Inspection, dated February 4, 1992; (4) permitting plaintiff to photograph said tapestries to obtain appraisal for use at trial; (5) compelling defendant Eric Estorick to appear for examination before trial; and (6) compelling the deposition of a person with knowledge as to the location of the tapestries since November 26, 1984. Upon consideration, and in the interest of developing a complete factual record, plaintiff's motion to reopen discovery is granted. The Court does not condone plaintiff's failure to request additional time for discovery prior to the discovery cut-off of April 30, 1992, or at the conference held before the Court on July 24, 1992, nor does it condone its failure to notice any depositions during the discovery period. However, in light of defendants' lack of complete candor during the discovery period, [FN1] and the Court's determination that additional discovery is necessary for a meaningful review of defendants' motion, plaintiff's motion for additional discovery is granted. This matter shall be referred to a Magistrate Judge [FN2] for determination of the time period for additional discovery as well as for resolution of the additional requests made by plaintiff. Having concluded that additional discovery is indicated, the Court finds that defendants' motion for summary judgment is premature, and, will thus be held in abeyance pending the conclusion of discovery. At that time, defendants will have the opportunity to renew their motion if appropriate. They will also have the option to supplement their papers or submit additional papers if necessary. The parties shall notify the Court of the new discovery cut-off, as well as any other rulings made by the Magistrate Judge. SO ORDERED.
FN1. For example, in their answer, as a fourteenth affirmative defense, defendants allege that plaintiff failed to deliver
six of the tapestries as required under the terms of the agreement. When asked about the missing tapestries in interrogatories,
however, defendants' responses were vague and unhelpful. Specifically, in response to plaintiff's inquiries as to the delivery
date of the tapestries, and which six tapestries plaintiff failed to deliver, defendants stated that they had no documents
which would enable them to respond, and they would supplement their answers if information became available. See Defendants'
Response to Plaintiff's Interrogatories, attached to Affirmation of Arthur G. Nevins ("Nevins Aff."), dated October 6, 1992,
at 2. Similarly, when asked by plaintiff to identify which tapestries were presently in the custody of defendants, defendants
responded merely by stating that those tapestries in their possession would be made available for plaintiff's inspection.
Id. at 3. Notwithstanding these vague and evasive answers regarding the tapestries, on May 21, 1992, after the discovery cut-off
and without any earlier disclosures, defendants produced the 12 remaining tapestries at the offices of defense counsel.
Defense counsel would not, however, answer any questions regarding the previous whereabouts of the tapestries, claiming that
discovery was closed. See Nevins Aff., at ¶ 4; Deposition of Ilya Gherman, at 190-91.
FN2. The Magistrate Judge will contact the parties directly. If, however, the parties do not hear from the Magistrate Judge
within ten days, contact chambers at 212-791-0907.
S.D.N.Y.,1993. 1:91cv07862 (Docket) (Nov. 20, 1991) |
