By Joseph Ax
NEW YORK, Dec 6 (Reuters) - A New York appeals court on
Wednesday barred a civil defendant from relying on witnesses and
evidence that his lawyers deliberately did not disclose to the
plaintiff, saying the attorneys' conduct was "unacceptable" and
"cannot be justified or condoned."
The Appellate Division, Second Department, ruled that law
firm Loccisano & Larkin's "intentionally false" responses to
discovery demands for witnesses and evidence were egregious
enough that its client, F.J.F & Sons Electric, should be
"Although perhaps an undesirable outcome, parties, where
necessary, will be held responsible for the failure of their
lawyers to meet court-ordered deadlines and provide meaningful
responses to discovery demands," wrote Justice Leonard Austin
for a unanimous five-judge panel. "The failure to abide by these
basic rules governing compliance with disclosure orders cannot
and will not be tolerated in our courts."
The underlying motor vehicle case was brought by Dominick
Arpino, who was on his motorcycle in Babylon, New York, when he
collided with a truck owned by F.J.F. & Sons and driven by an
employee, Thomas Foronjy.
Arpino sued Foronjy and the company, according to court
records. Arpino's lawyers filed discovery demands, asking for
the identity of any witnesses, as well as photographs or other
recordings of the truck after the accident.
A paralegal from Loccisano & Larkin, which is now Bello &
Larkin, sent a letter stating the firm had no photographs and
was unaware of any witnesses. In a subsequent letter, the
defense said "upon information and belief" it had no photographs
of the truck.
Months later, the firm said it planned to call four
witnesses, introduce 18 photographs and a video and rely on an
expert who had examined the photographs and spoken to the
witnesses. The photographs were dated only 15 days after the
accident and nearly a year before the firm's second letter
indicating it had no photographs.
Arpino's lawyer, Phillip Nikolis, moved to have the
witnesses and evidence precluded. Suffolk Supreme Court Justice
Paul Baisley rejected that motion.
The Second Department overruled Baisley.
"Although the defendants claim that their responses were
merely careless practice, the record belies that claim," Austin
wrote. "They were, in fact, intentionally false and misleading,
and were interposed for the purpose of avoiding the defendants'
obligation to provide timely and meaningful discovery
Robert Larkin of Bello & Larkin did not return calls for
comment. Matthew Naparty, who represented the defendants for the
appeal, also did not respond to requests for comment.
Nikolis said on Wednesday the decision shows that flouting
discovery rules is a serious offense.
"My client was very significantly injured," he said. "To
simply ignore it carries consequences."
Justices Mark Dillon, Thomas Dickerson, John Leventhal and
Robert Miller also sat on the panel.
The case is Arpino v. F.J.F. & Sons Electric Co, Inc,
Appellate Division, Second Department, No. 2011-02636.
For Arpino: Phillip Nikolis and Gary Rosenberg, Pugatch &
For F.J.F. & Sons (for the appeal): Matthew Naparty and
Timothy O'Shaughnessy of Mauro Lilling Naparty.
For F.J.F. & Sons (for the underlying case): Bello & Larkin.
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