Antolini v. McCloskey et al

Filing 256

OPINION AND ORDER re: 245 SECOND MOTION for Sanctions filed by Dino Antolini. By reason of the foregoing, Plaintiff's motion for sanctions is DENIED, and Defendants' request for sanctions is GRANTED IN PART and DENIED IN PART. The Court imposes monetary sanctions against Finkelstein in the amount of $6,250.00 for his conduct during Plaintiff's deposition. No later than thirty days from the date of this Opinion and Order, Finkelstein shall pay such amo unt to the Clerk of Court. The Court further imposes monetary sanctions against Finkelstein in the amount of Defendants' reasonable attorneys' fees and costs incurred in connection with the parties' cross-requests for sanctions . No later than fourteen days from the date of this Opinion and Order, Defendants' counsel shall file with the Court a declaration setting forth the fees and costs incurred for preparation of Defendants' Sanctions Briefing. No later tha n two weeks thereafter, Plaintiff may file any objection in a letter not to exceed three pages. In addition, the Court imposes monetary sanctions against Plaintiff and Finkelstein, jointly and severally, in the amount of $787.50 for canc ellation of the court-ordered July 23 deposition. No later than thirty days from the date of this Opinion and Order, Finkelstein and/or Plaintiff shall pay such amount to Defendants. The Clerk of Court is respectfully directed to close the gavel at ECF No. 245. SO ORDERED. (Signed by Magistrate Judge Stewart D. Aaron on 11/19/2021) (vfr) Transmission to Finance Unit (Cashiers) for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Dino Antolini,

11/19/2021
Plaintiff,

1:19-cv-09038 (GBD) (SDA)

-against-

OPINION AND ORDER

Amy McCloskey, et al.,
Defendants.
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE:
This Opinion and Order addresses the parties’ cross-requests for sanctions arising out of
the deposition of Plaintiff Dino Antolini (“Plaintiff” or “Antolini”). As discussed further below,
Plaintiff’s motion for sanctions is DENIED, and Defendants’ request for sanctions is GRANTED IN
PART and DENIED IN PART.
BACKGROUND
I have set forth much of the lengthy and tortured factual and procedural history of this
case in prior decisions—most recently, in my Opinion and Order denying Plaintiff’s motion for
recusal, Antolini v. McCloskey, No. 19-CV-09038 (GBD) (SDA), 2021 WL 4596522 (S.D.N.Y. Oct. 6,
2021) (ECF No. 247)—familiarity with which is assumed. Below, I recite the facts necessary for an
understanding of the issues presently before me.
I.

Plaintiff Files Suit; Plaintiff’s Counsel Is Arrested
Plaintiff, by and through his attorney of record, Stuart H. Finkelstein (“Finkelstein”),

commenced this action on September 28, 2019, asserting claims under the Americans with
Disabilities Act (the “ADA”), inter alia. (See Compl., ECF No. 1.) Plaintiff, a wheelchair user, alleges

1

that Defendants failed to make their place of public accommodation, a cocktail bar named
Madame X, accessible to persons with disabilities. (Id. ¶¶ 2, 6.)
On or about November 19, 2019, Finkelstein was arrested based upon a criminal
complaint issued by the U.S. Attorney’s Office for the Southern District of New York (the “Criminal
Complaint”). (See Compl., U.S. v. Finkelstein, No. 21-CR-00217, ECF No. 1.) Among other things,
the Criminal Complaint charged Finkelstein with using the stolen identity of two individuals to
file hundreds of fraudulent lawsuits pursuant to the ADA that those individuals never authorized.
(See id. ¶¶ 8-9.) 1
On August 4, 2020, after District Judge Daniels referred this case to me for General Pretrial
(see Order of Ref., ECF No. 36), Defendants filed an Emergency Letter Motion “requesting a
framed-issue hearing for the examination of Plaintiff, under oath, on the subject of whether
Plaintiff knowingly authorized [Finkelstein] to commence the instant action.” 2 (Defs.’ 8/4/20 Ltr.
Mot., ECF No. 60.) In opposition, Finkelstein denied the existence of any “emergency” and opined
that, were Defendants’ concerns sincere, their appropriate course of action was to take Plaintiff’s

In March 2021, an indictment against Finkelstein was issued by a Grand Jury. (See Finkelstein Indictment,
21-CR-00217, ECF No. 35.) Criminal proceedings remain pending against Finkelstein in this Court.

1

Previously, Finkelstein was disbarred in 2006 in connection with “an investigation by the Grievance
Committee for the Second and Eleventh Judicial Districts into allegations that he, inter alia, submitted
false and misleading answers and documents to the Grievance Committee that were altered in connection
with two pending complaints of professional misconduct.” See In re Finkelstein, 39 A.D.3d 120, 121 (2d
Dep’t 2007). He was reinstated in 2016. See In re Finkelstein, 137 A.D.3d 1028, 1028 (2d Dep’t 2016).
Defendants earlier had raised this subject, and related concerns, in a letter to Judge Daniels dated May
4, 2020 (Defs.’ 5/4/20 Ltr., ECF No. 32, at 2-3), and again in a June 10, 2020 hearing before me. (6/10/20
Tr., ECF No. 45, at 11-12, 17-18; see also id. at 5-6, 8-11.) Defendants attached to their Emergency Motion
an Affidavit of Brad Hamilton, who had helped Defendant Amy McCloskey open Madame X in 1997 (see
Hamilton Aff., ECF No. 60-5, ¶ 1), and who attested that on November 23, 2019, Plaintiff stated that he
had never been to Madame X, that he had stopped drinking alcohol approximately two years before his
alleged visit to Madame X, that he never agreed to serve as the sole plaintiff in any lawsuit, and that he
“felt he had been ‘scammed’ by his attorney.” (See id. ¶¶ 4, 12-15.)
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deposition. (Pl.’s 8/5/20 Ltr., ECF No. 61, at 2.) Finkelstein’s opposition also stated that “[t]he
most powerful U.S. Attorney’s Office in the country subpoenaed and spoke directly [with Plaintiff]
and rightfully, nothing came of it.” (Pl.’s 8/5/20 Ltr. at 2 (emphases in original).) 3
On August 7, 2020, the Court denied the Emergency Letter Motion, stating: “When
Defendants take the deposition of Plaintiff, they are free to ask questions regarding whether
Plaintiff authorized Mr. Finkelstein to commence this action[.]” (8/7/20 Order, ECF No. 63, ¶ 1.)
II.

Plaintiff Is Compelled To Sit For His Deposition
When Judge Daniels referred this case to me in June 2020, all depositions were scheduled

to be complete by December 2, 2020. (See 5/5/20 Order, ECF No. 33.) By cover email dated
September 18, 2020, Defendants noticed Plaintiff’s deposition for October 28, 2020. (See Defs.’
10/26/20 Mot. to Compel, Ex. D, ECF No. 105-4, at 3.) Over the following months, Plaintiff twice
unilaterally declined to appear for his live deposition, requiring Defendants to seek an extension
of discovery and, ultimately, to move to compel Plaintiff to sit for his deposition. 4
After Finkelstein, in response to Defendants’ motion to compel, advised the Court that he
had proposed to Defendants that Plaintiff’s deposition take place by written questions because
Plaintiff was “unable to verbally participate” in a live deposition (see Pl.’s 2/16/21 Ltr., ECF No.

Several months later, Finkelstein admitted that this statement was false. (See Pl.’s 11/23/20 Ltr., ECF No.
116 (“I have now come to learn that the US Attorney’s Office did not speak with [Plaintiff].”).)

3

(See Defs.’ 10/26/20 Mot. to Compel, Ex. D, at 2 (Finkelstein informing Defendants, in a one-sentence
email one week prior to deposition’s notice date, “We will be unable to attend.”); Defs.’ 12/1/20 Ltr. Mot.,
ECF No. 121 (Defendants requesting ninety-day extension of deposition deadline); Defs.’ 2/10/21 Ltr. Mot.
to Compel, Ex. B, ECF No. 140-2, at 6 (referencing Plaintiff’s deposition noticed for February 11, 2021);
Pl.’s 2/16/21 Ltr., ECF No. 141, at 1 (stating that, one week prior to deposition’s notice date, Finkelstein
informed Defendants that Plaintiff was “unable to verbally participate in his deposition”); Defs.’ 2/10/21
Ltr. Mot. to Compel, at 1 (asserting that “Plaintiff has repeatedly failed to confirm his attendance for two
(2) duly-noticed depositions, and has generally refused to provide his availability to sit for a deposition”
and moving to compel Plaintiff to “appear for a deposition, at a date and time scheduled by the Court”).)

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141, at 1), the Court scheduled a video hearing for March 2, 2021 and directed Plaintiff himself
to appear. (See 2/17/21 Order, ECF No. 142, ¶ 2.) At that hearing, after making inquiries of
Plaintiff to determine whether he could participate in a remote live deposition notwithstanding
his medical condition, the Court concluded that, while Plaintiff “does have, in fact, difficulty
communicating . . . , the Court is satisfied that Mr. Antolini, under oath, can answer questions
that are properly posed to him” at a live deposition. (3/2/21 Tr., ECF No. 195 at 23.) In an Order
following the conference, the Court granted Defendants’ motion to compel and ordered that
Plaintiff’s remote live deposition commence on April 19, 2021. (3/2/21 Order, ECF No. 150, ¶¶ 1,
2.) In the same Order, the Court directed that “there shall be no objections at Plaintiff’s
deposition other than objections to form and objections on the basis of privilege, and only in the
case of the latter may Plaintiff decline to answer the question posed.” 5 (Id. ¶ 3; see also 3/2/21
Tr. at 12, 22-23.)
III.

Plaintiff’s April 19, 2021 Deposition
Plaintiff’s deposition commenced on April 19, 2021, with Defendants’ counsel, Jason

Mizrahi (“Mizrahi”) asking the questions. (See 4/19/21 Dep. Tr., ECF No. 167-1.) Within the first
hour of the deposition, Mizrahi called the Court’s chambers twice to complain of Finkelstein’s
“improper speaking objections[,] . . . repeated instructions and coaching.” 6 (Id. at 36-38, 48.) On

The Court previously had given a similar directive in connection with Defendants’ depositions during a
call received from the parties in the midst of Defendants’ depositions. (See 3/2/21 Tr. at 22-23.)
5

For example, after Antolini was asked, “[A]re you taking any other prescription medications?” and he
responded, “No,” Finkelstein stated, “We need you to -- objection to form. We need you to clarify the
question.” (Antolini Dep. Tr. at 22.) Finkelstein then asked Antolini if he understood Mizrahi’s question to
which Antolini responded, “I don’t understand.” (Id. at 23.) Later, after Antolini was asked, “[H]ave you
taken any substances in the last 24 hours that would affect your ability to testify accurately or to
understand my questions?,” and he responded, “No,” Finkelstein asked, “What do you mean by
substances? . . . Do you know what he means?” (Id. at 24-25.) These questions by Finkelstein then led

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the first call, the Court reiterated to Finkelstein its instructions in its March 2 Order: “I’m going
to be crystal clear. You may object to the form of a question or object—state any objection you
want to any question with the word [‘]objection.[’] You are not permitted to instruct the witness
not to answer except on privilege grounds or give any other instructions or speak any other words
than the word [‘]objection.[’]” (Id. at 40.) On the second call, the Court stressed repeatedly that
there would be “financial consequences” for further violations of those instructions:
I’m going to get a copy of this transcript in the event that the speaking objections
continue, and I will impose sanctions for each and every speaking objection you
make, Mr. Finkelstein.
I haven’t figured out what the -- what the number is, what the dollar figure is, but
it will be significant.
So if you choose to continue behaving in this manner in violation of my ruling,
there will be financial consequences associated with it.
Id. at 51-52.
Finkelstein continued to make improper speaking objections, certain of which appear to
have been designed to coach Plaintiff. 7 Even where his objections were not speaking objections,
they were often disruptive; his objections interrupted Mizrahi’s questions to the point that the
Court Reporter had to ask Finkelstein to stop: “Hang on. Can I just ask, Mr. Finkelstein, can you
Antolini to state, “I don’t know what he means by that.” (Id. at 25.) Finkelstein also instructed Antolini not
to answer the question, “What other lawsuits were you involved in?” (Id. at 33.)
(See, e.g., 4/19/21 Dep. Tr. at 119-20 (“Q. . . . [C]an you tell me the last time you traveled to Manhattan?
MR. FINKELSTEIN: I believe he said he was there yesterday. A. Yeah.”); id. at 131 (“Q. Health permitting,
do you have any future plans to go to West Houston Street? MR. FINKELSTEIN: Objection. Asked and
answered. A. I think I answered already.”); id. at 178-79 (“Q. Mr. Antolini, are you familiar with the
business at 228 Thompson Street in -- MR. FINKELSTEIN: Objection. Q. --New York, New York -- MR.
FINKELSTEIN: Asked and answered. Q. -- 10012? MR. FINKELSTEIN: Asked and answered about seven,
eight minutes ago. Objection. Q. Mr. Antolini? A. You asked me that seven times already.”); id. at 247 (“Q.
Mr. Antolini, it says here, quote, your memory is worsening. You’re having trouble with concentration.
You were to repeat a brain MRI, and you were referred to obtain labs for reversible dementia that you did
not complete. MR. FINKELSTEIN: Objection. Whatever that means. I’m not sure. . . . A. I have no idea.”).)
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just let him get the whole question out? Because the address is getting choppy when you’re
objecting in the middle of the question.” (4/19/21 Dep. Tr. at 181; see also, e.g., id. at 103, 111.)
Approximately five hours into the deposition, Mizrahi sought to ask Antolini questions
about Finkelstein. (See 4/19/21 Dep. Tr. at 272-82.) Finkelstein did not allow it. He instructed
Antolini not to answer a question as to how they had met, did not permit Antolini to answer
questions regarding a deposition exhibit consisting of copies of his arrest warrant and Criminal
Complaint, and, ultimately, in response to a question as to whether Antolini was aware that he
had been arrested, unilaterally terminated the deposition. 8
IV.

The Court Issues And Rules On An Order To Show Cause
On May 6, 2021, after reviewing the transcript of Plaintiff’s April 19 terminated

deposition, the Court ordered that Finkelstein show cause why he should not be sanctioned,
pursuant to Rules 16(f) and 37(b)(2) of the Federal Rules of Civil Procedure, 28 U.S.C. § 1927
and/or the inherent powers of the Court, for his violations of the Court’s March 2 Order and of
the Court’s rulings made during the deposition. (5/6/21 Order to Show Cause (“OTSC”), ECF No.
169.) On June 7, 2021, Plaintiff moved to terminate his deposition and for sanctions against
Mizrahi for his deposition conduct. (Pl.’s 6/7/21 Mem., ECF No. 177.) Then, on June 11, 2021,
Finkelstein responded to the OTSC. (Finkelstein’s 6/11/21 Mem., ECF No. 180.) Defendants

(See 4/19/21 Dep. Tr. at 272 (“Q. How did you and Mr. Finkelstein meet? MR. FINKELSTEIN: Don’t answer.
Next question. Directing him not to answer.”); id. at 273 (“MR. MIZRAHI: Madam Court Reporter, I’m going
to be admitting this [arrest warrant and Criminal Complaint] into evidence. MR. FINKELSTEIN: No, you’re
not. If you don’t get it off the screen, and we’re not talking about that either, this -- this deposition will be
over. It will be cancelled. It will be terminated.”); id. at 274 (“MR. FINKELSTEIN: . . . . [Mizrahi] mentioned
something about an arrest just now. Mr. Antolini is not going to respond to it, I’m not going to respond to
it, and we’ll let the chips fall where they may with Judge Aaron Stewart [sic] . . . .”); id. at 281-82 (“Q. Mr.
Antolini, were you aware that Mr. Finkelstein was arrested? MR. FINKELSTEIN: Okay, that’s it. Dino, hop
off -- hop off the deposition. Hop off. Turn it off. We’re done. We’re done.”).)
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responded to Plaintiff’s and Finkelstein’s submissions on June 9, 2021 and June 18, 2021,
respectively. (Defs.’ 6/9/21 Ltr., ECF No. 178; Defs.’ 6/18/21 Mem., ECF No. 182.)
In an Order, dated June 19, 2021, the Court concluded that it was “clear that Finkelstein
violated the Court’s March 2, 2021 Order, as well as the Court’s rulings made during Plaintiff’s
deposition,” and indicated that it would impose sanctions on Finkelstein. (6/19/21 Order, ECF
No. 184, at 2 (citation omitted).) The Court deferred the determination and imposition of those
sanctions, stating that it would “base the extent and/or amount of such sanctions on the totality
of Finkelstein’s conduct during Plaintiff’s deposition, which remains open.” (Id.) The Court denied
Plaintiff’s motion to terminate the deposition, and denied without prejudice Plaintiff’s motion to
sanction Mizrahi for the purportedly harassing nature of his deposition questions, stating that,
“[a]fter Plaintiff’s deposition has been completed, Finkelstein may file a motion for sanctions
based on defense counsel’s conduct at the entire deposition.” (Id. at 3, 4.) The Court ordered that
Plaintiff’s deposition be concluded no later than July 23, 2021. (See id. at 5.)
V.

Plaintiff Fails To Appear For His Court-Ordered Deposition And Related Conference
On June 25, 2021, Defendants noticed Plaintiff’s continued deposition by means of video

teleconferencing for Friday, July 9, 2021. (See Defs.’ 7/6/21 Mot. to Compel, Ex. A, ECF No. 1901.) Two days prior to the noticed deposition date, Plaintiff advised that he was unavailable on
that day, but that he was available on July 23, 2021. (Pl.’s 7/7/21 Ltr., ECF No. 192.) On July 13,
2021, the Court directed that Plaintiff’s continued deposition go forward on July 23, 2021 at 10:00
a.m. (7/13/21 Memo Endorsement, ECF No. 197.)
In an Opinion and Order, dated July 20, 2021, concerning a separate discovery issue in
this case, District Judge Daniels cautioned Finkelstein as follows: “[T]his Court is aware of Mr.
7

Finkelstein’s dilatory conduct during discovery and that Magistrate Judge Aaron has previously
imposed sanctions on Mr. Finkelstein based on his conduct at his client’s deposition. Thus, Mr.
Finkelstein is warned that the continuance of such behavior will result in all appropriate
sanctions.” Antolini v. McCloskey, No. 19-CV-09038 (GBD) (SDA), 2021 WL 3076698, at *3
(S.D.N.Y. July 20, 2021) (ECF No. 198) (citation omitted).
Two days later, on July 22, 2021, Finkelstein filed a letter indicating that Plaintiff could not
go forward with his deposition the following morning, because he would be accompanying his
wife to an appointment at Bellevue Hospital instead, and because Plaintiff’s grandson, whose
technical assistance was required in order for Plaintiff to participate in a deposition via
videoconference, was in Italy. (Pl.’s 7/22/21 Ltr., ECF No. 200.) The letter stated that Plaintiff
could be available by telephone “late in the afternoon” on July 23. (See id.)
The Court then scheduled a telephone conference for 3:00 p.m. on July 23, 2021. (7/22/21
Order #2, ECF No. 204.) The Court’s Order provided that “Plaintiff shall participate.” (Id.) Plaintiff
failed to appear for that conference. (See 7/23/21 Tr. at 5.) The Court then entered an Order
directing Plaintiff to appear for a telephone conference on August 4, 2021, and directing
Defendants’ counsel to submit proof of the costs and fees incurred in connection with
preparation for the cancelled deposition. (7/23/21 Order, ECF No. 205.) On July 27, 2021,
Defendants’ counsel filed a letter enclosing its corresponding time records. (Defs.’ 7/27/21 Ltr.,
ECF No. 207.) Plaintiff appeared at the August 4 telephone conference, where he candidly
admitted he was “aware [that he was] supposed to be at a [court-ordered] deposition [on July
23, 2021], and [he] chose to go with [his] wife to Bellevue [Hospital] instead.” (See 8/4/21 Tr.,
ECF No. 215, at 8-9.)
8

Subsequent to that conference, the Court directed that Plaintiff’s continued deposition
proceed via video on Thursday, August 26, 2021. (8/12/21 Memo Endorsement, ECF No. 216.)
VI.

Plaintiff’s August 26, 2021 Continued Deposition
Plaintiff’s continued deposition commenced on August 26, 2021, with Mizrahi again

asking the questions. (See 8/26/21 Dep. Tr., ECF No. 232.) Remarkably, notwithstanding the
intervening rulings and warnings from both District Judge Daniels and from me, Finkelstein’s
conduct at the continued deposition was even more disruptive and contumacious than it had
been at the April 19 deposition.
Finkelstein continued to make improper speaking objections, at a higher frequency than
during the April deposition, 9 including speaking objections that appear to have been designed to
coach Plaintiff. 10 He continued to interrupt Mizrahi’s questions and otherwise disrupt Mizrahi’s
For example, the following exchange occurred when Mizrahi asked his first substantive question of the
continuation:

9

Q. Mr. Antolini, besides this lawsuit, have you ever been involved in any other legal claims
or lawsuits?
A. Yes—
MR. FINKELSTEIN: Objection. Objection. Asked and answered at the last deposition at
length, ad nauseam. And if you’re going to continue to repeat the same questions that
you did last time, we’re going to need to call up the Judge to get a ruling. This is a
continuing deposition, it’s not a rehash of the last four hours that we had April 19th. So
I’ll be guided by your next question, Counsel.
(8/26/21 Dep. Tr. at 10; see also, e.g., id. at 13, 18, 26, 28, 29, 46, 47, 51, 52, 53, 54, 55-56, 59, 60, 61, 62,
64, 65, 79, 93, 95-96, 104, 105-06, 108.)
For example, the following exchange occurred when Mizrahi asked about Plaintiff’s reasons for naming
three individual Defendants in this lawsuit:
10

Q. Mr. Antolini, the three individuals that I listed appear to be named as individual
Defendants in this lawsuit. Why are they named in this lawsuit?
MR. FINKELSTEIN: Objection. I don’t know. Why are they named in this lawsuit? Dino, if
you know, you know. If you don’t, you don’t. It’s okay, when I think about it.
THE WITNESS: I don’t know.

9

chosen course of progressing through the deposition, again leading the Court Reporter to request
a reduction in cross-talk—ironically enough, only to be cut off by Finkelstein as he did so:
THE REPORTER: It’s really difficult for me to get this down with all the—
MR. FINKELSTEIN: Yeah. I’m glad you said that. Next question, please. Thank you.
(8/26/21 Dep. Tr. at 79; see also id. at 71 (“[T]here’s just lots of crosstalk, so it makes it very
difficult.”).) On several occasions, such disruptive interjections involved ad hominem comments
insulting and/or mocking Mizrahi. 11
Most egregiously, on at least 60 occasions by the Court’s count, Finkelstein instructed
Plaintiff not to answer a question from Mizrahi. 12 While some of those occasions involved
Finkelstein asserting an ostensible claim as to attorney-client privilege, the majority of those

(8/26/21 Dep. Tr. at 95; see also, e.g., id. at 14, 21, 45-46, 57.)
For example, Finkelstein insulted both Mizrahi’s lawyering and his appearance after Mizrahi asked
Plaintiff whether he trusted Finkelstein:

11

Q. Mr. Antolini, do you trust Mr. Finkelstein?
MR. FINKELSTEIN: Don’t answer that.
THE WITNESS: Yes.
MR. FINKELSTEIN: Oh, yes. Okay, Dino. I appreciate that. Next idiotic question, please,
already. Oh, my God. Hey, Jonathan, let me ask you a question. How come you keep going
on mute, and I can’t see your smiling face; what’s up with that?
THE REPORTER: It’s just standard. I try not to be a distraction.
MR. FINKELSTEIN: You’d be a welcome distraction. If you want to put your face up there,
that would be nice. Otherwise, I gotta look at -- you know what I mean?
(8/26/21 Dep. Tr. at 37; see also, e.g., id. at 6-7, 9, 42, 65, 110.)
(See, e.g., 8/26/21 Dep. Tr. at 15-16, 31-32, 34, 35, 37, 38, 39, 41, 43, 43, 44, 48-49, 49, 49-50, 57, 5758, 66, 70-71, 74-75, 76, 78, 79, 80, 84, 85, 86, 87, 88, 89, 90, 91, 92-93, 93, 93-94, 98, 99, 100, 101, 102,
109, 110.)
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occasions did not. 13 In any event, as further discussed below, in several of the instances in which
he did claim privilege, the claim appears to have been baseless. 14
VII.

The Parties Seek Sanctions
On August 26, 2021, having been advised that Plaintiff’s deposition was complete, the

Court entered an Order setting forth, inter alia, a briefing schedule for any motions for sanctions
arising from the deposition (Order, ECF No. 220).
On September 14, 2021, Defendants filed a memorandum in support of their request for
sanctions against Finkelstein, under Rules 16(f) and 37(b)(2) of the Federal Rules of Civil
Procedure, 28 U.S.C. § 1927 and/or the inherent powers of the Court. (Defs’ Mem., ECF No. 235
(incorporating by reference Defendants’ prior sanctions brief dated June 18, 2021 (ECF No. 182)).)
On October 4, 2021, Plaintiff filed an opposition (Pl.’s Opp., ECF No. 244), and on October 18,
2021, Defendants filed a reply (Defs.’ Reply, ECF No. 249).
On September 29, 2021, Plaintiff moved for sanctions against Mizrahi under Rules 11(b),
16(f), 30(d) and 37(b) of the Federal Rules of Civil Procedure, 28 U.S.C. § 1927 and the inherent
powers of the Court. (See Pl.’s Mem., ECF No. 242-1.) On October 15, 2021, Defendants filed an

(See, e.g., 8/26/21 Dep. Tr. at 31-35 (in response to questions concerning the Criminal Complaint); id.
at 37-39 (to questions regarding whether Plaintiff trusts Finkelstein); id. at 48-49; 57, 58, 66, 70-71, 76,
76, 80, 84, 85 (to questions concerning Plaintiff’s review, verification, execution, and confidence in the
accuracy of various case documents); id. at 86-89 (to questions concerning Plaintiff’s motion for recusal);
id. at 90-91 (to questions concerning Plaintiff’s signature); id. at 92-94 (to questions concerning Plaintiff’s
Complaint); id. at 98-101 (to questions concerning Plaintiff’s history of alcoholism); id. at 102 (questions
concerning Plaintiff’s claim to have suffered emotional distress); id. at 109-10 (to questions concerning
Plaintiff’s upset state).)
13

(See, e.g., 8/26/21 Dep. Tr. at 15-17 (in response to questions concerning how Plaintiff met Finkelstein);
41-42 (to questions concerning whether Plaintiff has entered into a Power of Attorney or a retainer
agreement with Finkelstein); id. at 42-45 (to questions concerning the methods and frequency of Plaintiff’s
communications with Finkelstein); id. at 74-79 (to questions concerning whether Plaintiff signed certain
documents in front of Finkelstein).)
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opposition (Defs.’ Opp., ECF No. 248), and on November 1, 2021, Plaintiff filed a reply (Pl.’s Reply,
ECF No. 250).
LEGAL STANDARDS
I.

Deposition Objections Under Rule 30(c)
Rule 30(c)(2) of the Federal Rules of Civil Procedure provides:
An objection at the time of the examination—whether to evidence, to a party’s
conduct, to the officer’s qualifications, to the manner of taking the deposition, or
to any other aspect of the deposition—must be noted on the record, but the
examination still proceeds; the testimony is taken subject to any objection. An
objection must be stated concisely in a nonargumentative and nonsuggestive
manner. A person may instruct a deponent not to answer only when necessary to
preserve a privilege, to enforce a limitation ordered by the court, or to present a
motion under Rule 30(d)(3).

Fed. R. Civ. P. 30(c)(2). 15 In order to avoid the use of speaking objections, courts have instructed
counsel to object to a deposition question not calling for privileged information using the single
word, “objection,” or at most a short phrase. See Syntel Sterling Best Shores Mauritius Ltd. v.
TriZetto Grp., 328 F.R.D. 100, 110 (S.D.N.Y. 2018) (“[C]ounsel . . . shall refrain from making
speaking objections when defending depositions. . . . Objections as to the form of the question
shall be made by opposing counsel, who shall simply state, ‘Objection.’ The objecting counsel
shall not speak any additional words concerning the basis of the objection unless a clarification
is requested.”); Greer v. Mehiel, No. 15-CV-06119 (AJN) (JLC), 2017 WL 543453, at *3 (S.D.N.Y.
Feb. 10, 2017) (“Objections as to the form of the question shall be made by opposing counsel
. . . , who shall simply state, ‘Objection.’ The objecting counsel . . . shall not speak any additional

Rule 30(d)(3) provides in relevant part: “At any time during a deposition, the deponent or a party may
move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that
unreasonably annoys, embarrasses, or oppresses the deponent or party.” Fed. R. Civ. P. 30(d)(3)(A).
15

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words concerning the basis of the objection unless a clarification is requested.”); see also
RightCHOICE Managed Care, Inc. v. Hosp. Partners, Inc., No. 18-CV-06037 (DGK), 2019 WL
3291570, at *3 (W.D. Mo. July 22, 2019) (“The parties shall henceforth state the bases for their
objections with only a single word or, if necessary, a short phrase (e.g., ‘compound question’).”);
Severstal Wheeling Inc. v. WPN Corp., No. 10-CV-00954 (LTS) (GWG), 2012 WL 1982132, at *1
(S.D.N.Y. May 30, 2012) (“To ensure a fair deposition, it is best if counsel state objections to a
question in a single word or phrase.”).
II.

Motions To Terminate Or Limit A Deposition Under Rule 30(d)
Rule 30 of the Federal Rules of Civil Procedure, which governs the taking of deposition,

does not contain provisions for the imposition of sanctions based upon an examiner asking
improper questions. Rather, Rule 30 provides that, “[a]t any time during a deposition, the
deponent or a party may move to terminate or limit it on the ground that it is being conducted
in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent
or party.” Fed. R. Civ. P. 30(d)(3)(A). 16 Asking “irrelevant deposition questions does not, by itself,
constitute sufficient annoyance or oppressive conduct contemplated by Federal Rule of Civil
Procedure 30, which allows for the termination or limitation of an examination upon a showing
that the deposition is being conducted in a manner evidencing bad faith, or to embarrass, annoy,
or oppress the deponent.” Berry v. Yosemite Cmty. Coll. Dist., No. 16-CV-00411 (LJO) (EPG), 2019

See also 7 Moore’s Federal Practice - Civil § 30.51 (2021) (“Rule 30(d)(3) provides that if a deposition is
being conducted in bad faith or in such a manner as unreasonably to annoy, embarrass, or oppress the
deponent or a party, the deponent or a party may move for a protective order. On demand of the
objecting party or the deponent, the officer conducting the deposition must suspend the deposition for
the time necessary to make the motion.”).

16

13

WL 2869068, at *12 (E.D. Cal. July 3, 2019), report and recommendation adopted as modified,
2019 WL 3943890 (E.D. Cal. Aug. 21, 2019).
III.

Sanctions Under Rule 30(d) For Dilatory Deposition Conduct
Rule 30(d)(2) authorizes the Court to sanction any person who “impedes, delays, or

frustrates the fair examination of the deponent.” Fed. R. Civ. P. 30(d)(2). “A court . . . may impose
sanctions under Rule 30(d)(2) on its own accord to deter ongoing and future misconduct. 7
Moore’s Federal Practice - Civil § 30.43 (2021) (citing Sec. Nat’l Bank v. Jones Day, 800 F.3d 936,
942 (8th Cir. 2015) (“Both the purpose and the plain language of Rule 30(d)(2) allow courts to
consider sanctions sua sponte”)). “To impose sanctions [under Rule 30(d)(2)], a Court need not
find that a party acted in bad faith.” Cordero v. City of New York, No. 15-CV-03436 (JBW) (CLP),
2017 WL 2116699, at *5 (E.D.N.Y. May 12, 2017) (citation omitted). “Rather, the only
requirement for sanctions is that the fair examination of the deponent was frustrated, impeded,
or delayed.” Id. (citation omitted). “The decision to impose sanctions is at the discretion of the
court.” Id. (citation omitted).
IV.

Sanctions Under Rule 37(b) For Failure To Obey A Discovery Order
Where a party’s misconduct violates a court order, Rule 37(b) of the Federal Rules of Civil

Procedure allows a court to impose on that party sanctions of varying degrees of severity. Hawley
v. Mphasis Corp., 302 F.R.D. 37, 46 (S.D.N.Y. 2014). Sanctions may include attorney’s fees,
adverse inferences, preclusion of evidence, striking pleadings, and default judgment. See Fed. R.
Civ. P. 37(b)(2)(A). “Instead of or in addition to the orders [referred to] above, the court must
order the disobedient party, the attorney advising that party, or both to pay the reasonable

14

expenses, including attorney’s fees, caused by the failure, unless the failure was substantially
justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C).
“[M]onetary sanctions pursuant to Rule 37 for noncompliance with discovery orders
usually are committed to the discretion of the magistrate [judge].” Shanghai Weiyi Int’l Trade Co.
v. Focus 2000 Corp., No. 15-CV-03533 (CM) (BCM), 2017 WL 2840279, at *9 (S.D.N.Y. June 27,
2017) (citing Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990)).
V.

Sanctions Under Rule 37(d) For Failure To Attend A Deposition
Rule 37(d) provides that a court has the power to order sanctions when “a party . . . fails,

after being served with proper notice, to appear for [his] deposition.” Fed. R. Civ. P. 37(d)(1)(A)(i).
Pursuant to this Rule, a court may award a variety of sanctions but “must” require the recalcitrant
party or its attorney or both “to pay the reasonable expenses, including attorney’s fees, caused
by the failure, unless the failure was substantially justified or other circumstances make an award
of expenses unjust.” Fed. R. Civ. P. 37(d)(3). “It is well-established . . . that a party applying for
sanctions under Rule 37(d) is not required to prove that the party who failed to attend the
deposition acted in bad faith.” John Wiley & Sons, Inc. v. Book Dog Books, LLC, 298 F.R.D. 145,
149 (S.D.N.Y. 2014) (citations omitted).
VI.

Sanctions Under 28 U.S.C. § 1927 And The Court’s Inherent Powers
Under 28 U.S.C. § 1927 (“Section 1927”), sanctions may be imposed on any attorney “who

so multiplies the proceedings in any case unreasonably and vexatiously.” 28 U.S.C. § 1927. The
Court also has inherent power to sanction an attorney, “a power born of the practical necessity
that courts be able ‘to manage their own affairs so as to achieve the orderly and expeditious
disposition of cases.’” Revson v. Cinque & Cinque, 221 F.3d 71, 78 (2d Cir. 2000) (quoting
15

Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)). The imposition of sanctions under Section 1927
or the Court’s inherent powers requires a finding of bad faith. Oliveri v. Thompson, 803 F.2d 1265,
1273 (2d Cir. 1986). Such sanctions are proper “when the attorney’s actions are so completely
without merit as to require the conclusion that they must have been undertaken for some
improper purpose such as delay.” Id. Under Section 1927 and their inherent power, courts have
imposed deposition costs on attorneys “whose disruptions of a deposition rendered it futile and
ineffective, and were obnoxious to the orderly, reasonable, and proper conduct of an
examination.” Unique Concepts, Inc. v. Brown, 115 F.R.D. 292, 293-94 (S.D.N.Y. 1987) (citation
and internal quotations omitted).
APPLICATION
I.

Mizrahi’s Deposition Conduct Does Not Warrant Sanctions
Because the issue of the propriety of Mizrahi’s deposition conduct is relevant to both of

the sanctions motions presently before the Court—given that Plaintiff raises the issue not only
as a basis for its own motion, but also as a defense against Defendants’ motion—the Court
addresses this question first. Plaintiff and Finkelstein characterize Mizrahi’s deposition behavior
as “abusive, sordid, and atrocious,” and as “conducted in bad faith, and in such manner as
unreasonably to humiliate, embarrass, abuse and oppress [Plaintiff].” (Pl.’s Mem. at 4, 5; Pl.’s
Opp. at 5.) After closely reviewing both deposition transcripts, the Court disagrees.
Plaintiff summarizes his complaint with Mizrahi’s deposition conduct as follows:
Defendants’ [sanctionable] conduct boils down to 1) humiliating and bad faith
questioning about Plaintiff’s personal life . . . ; 2) humiliating and bad faith
questions about Plaintiff’s struggle with alcoholism; 3) humiliating and bad faith
questions about Plaintiff’s ability/desire to read and write; 4) harassing and bad
faith questions about Plaintiff’s privileged relationship with his attorney . . . , as
well as questions about Plaintiff’s counsel’s private life; 5) attempted obstruction
16

of Plaintiff’s pausing of the deposition to take breaks; and 6) badgering and
abusive questioning in the form of mischaracterizing answers and re-asking
questions that had been asked upward of seven times.
(Pl.’s Mem. at 5-6.) The Court finds each of the first four items of Plaintiff’s list to be within the
scope of good-faith, reasonable and proportional discovery in this action, and disagrees with
Plaintiff’s characterization of the latter two items.
As a preliminary, overarching observation, the Court finds that, in seeking sanctions
against Mizrahi and in resisting Defendants’ motion for sanctions, Plaintiff and Finkelstein act as
if Finkelstein had never been indicted for filing hundreds of fraudulent ADA lawsuits, as if
Plaintiff’s medical records did not indicate that he has a condition involving impaired memory,
and as if there were no sworn testimony in the record attesting to Plaintiff having stated that he
never attempted to visit Madame X. But Finkelstein was, the medical records do, and there is
such testimony. (See, e.g., Finkelstein Indictment ¶¶ 1, 2; 5/4/21 Tr. at 222-67; Hamilton Aff.
¶¶ 4, 13.) Given these circumstances, the Court finds Defendants within their rights to use
discovery to probe the bona fides of Plaintiff’s relationships with (1) Finkelstein, (2) the
prosecution of this lawsuit, and (3) Madame X.
Thus, while Plaintiff takes issue with Mizrahi questioning him about the “personal”
matters of his cell phone information and his sources of income, the Court finds Defendants
within their rights to probe, e.g., whether Plaintiff had sufficient income to support his claimed
habit of eating out “[o]ne hundred to a thousand” times in a year. (4/19/21 Dep. Tr. at 93.) While
it is less clear to the Court exactly how Defendants would use cell phone information to
investigate Plaintiff’s “travel habits and proximity to [Madame X],” as Defendants claim (Defs.’
Opp. at 21), the Court notes that Mizrahi did segue directly from this line of questioning into a
17

line of questions about Plaintiff’s preferred means of local travel. (See 4/19/21 Dep. Tr. at 81-83.)
In any event, at a minimum, after closely reviewing the deposition passage at issue, the Court
finds nothing about the cell-phone line of questioning to suggest “bad faith” or any intention or
effect of “abusing,” “humiliating,” or “oppressing” Plaintiff—and, indeed, in real time, Plaintiff
never indicated that this line of questioning bothered him. (See 4/19/21 Dep. Tr. at 72-80.)
Likewise, Plaintiff’s struggle with alcoholism is plainly within the scope of discovery here,
where, e.g., Plaintiff’s medical records indicate that Plaintiff’s doctor advised him against
drinking, and where a sworn affidavit attests that Plaintiff stated he had quit drinking prior to his
alleged attempted entry of Madame X, a cocktail bar. (See, e.g., 5/4/21 Tr. at 257-69; Hamilton
Aff. ¶¶ 4, 13.) Defendants have every right to probe this issue.
The same goes for Mizrahi’s “questions about Plaintiff’s ability/desire to read and write.”
Where Finkelstein has been indicted for stealing the identity of others to file ADA lawsuits
without their knowledge (see Finkelstein Indictment ¶¶ 1, 2); where Plaintiff’s medical records
reflect—and Plaintiff himself acknowledges—that his memory is impaired (see, e.g., 5/4/21 Tr.
at 114, 222-67); where Plaintiff himself admitted that his “handwriting is horrible” (3/2/21 Tr. at
3); and where several of Plaintiff’s signatures of court documents appear—to the Court’s
untrained eye, at least—to be written by a steady hand and to be dead ringers for one another
(see, e.g., Defs.’ Opp. at 2), Defendants are within their rights to probe the degree to which
Plaintiff has been a knowing participant in the numerous lawsuits that Finkelstein has filed in his
name. Questions as to whether and to what extent Plaintiff reviewed and himself executed the
litigation materials submitted in his name are probative of this subject matter.

18

For substantially the same reasons, Defendants have legitimate reason to probe Plaintiff’s
relationship with Finkelstein, to the extent that they do not abridge Plaintiff’s attorney-client
privilege in doing so. To that end, Mizrahi went to great pains to make the distinction to Plaintiff
that his questions concerned facts about that relationship, but that Plaintiff was not to disclose
any of his communications with Finkelstein. (See, e.g., 8/26/21 Dep. Tr. at 16, 41.) While
Finkelstein purports to interpret the attorney-client privilege expansively, to foreclose virtually
any question concerning Plaintiff’s counsel or Plaintiff’s relationship with his counsel, the cases
on which Finkelstein relies on regarding this issue make clear that the privilege does not extend
to certain facts about the attorney-client relationship, nor to certain facts underlying a
communication from attorney to client, so long as the client has also learned those facts
independently of attorney-client communication. 17 Accordingly, the Court finds nothing
inappropriate about Mizrahi’s questions as to how Plaintiff and Finkelstein met (see 8/26/21 Dep.
Tr. at 15-17); as to whether Plaintiff and Finkelstein have entered into a retainer agreement or a
Power of Attorney (id. at 41-42); as to the methods and frequency of Plaintiff’s communications
with Finkelstein (id. at 42-45); and as to whether Plaintiff signed certain documents in front of
Finkelstein (id. at 74-79). While it may be, depending on the underlying facts, that some of

See, e.g., In re Colton, 201 F. Supp. 13, 16 (S.D.N.Y. 1961), aff’d sub nom. Colton v. United States, 306
F.2d 633 (2d Cir. 1962) (attorney-client privilege “does not extend to the fact of retention, or to a retainer
agreement as evidence of the retention, since such information is required to enable the court to
determine that the relation of attorney and client exists”); Sicurelli v. Jeneric/Pentron, Inc., No. 03-CV04934 (SLT) (KAM), 2005 WL 3591701, at *6 (E.D.N.Y. Dec. 30, 2005), report and recommendation
adopted, 2006 WL 681212 (E.D.N.Y. Mar. 14, 2006) (“Apart from what plaintiffs may have learned from
communications regarding legal advice within the attorney-client relationship, Jeneric was entitled to
probe the plaintiffs’ knowledge of relevant underlying facts[.]”); see also, e.g., Vingelli v. U.S., Drug Emf’t
Agency, 992 F.2d 449, 452 (2d Cir. 1993) (explaining that retainer agreements generally are not considered
privileged because “they are not the kinds of disclosures that would not have been made absent the
privilege and their disclosure does not incapacitate the attorney from rendering legal advice”).
17

19

Finkelstein’s privilege objections regarding these questions do have merit, the Court finds
nothing abusive, oppressive, or illegitimate about Mizrahi seeking to pursue these lines of
questioning in the first instance.
While Plaintiff also objects to Mizrahi’s asking about Finkelstein’s arrest, the Court finds
this subject relevant as well. What Plaintiff claims to have known, and when, about his counsel’s
alleged criminality, and how, if at all, Plaintiff claims to have reacted, could be probative of the
bona fides of Plaintiff’s and Finkelstein’s ostensible principal-agent relationship. Moreover, the
Court’s August 7, 2020 Order denying Defendants’ Emergency Letter Motion expressly
contemplated Plaintiff’s deposition as being Mizrahi’s opportunity to pose questions to Plaintiff
regarding Finkelstein’s Criminal Complaint. (See 8/7/20 Order.)
Thus, the Court finds none of the lines of questioning about which Plaintiff complains
unreasonable, let alone abusive, oppressive or conducted in bad faith.
As for Mizrahi’s “attempted obstruction of Plaintiff’s pausing of the deposition to take
breaks,” it was Finkelstein, not Plaintiff, who requested the only break cited by Plaintiff, and he
did so less than 40 minutes after a prior 21-minute break. (See, e.g., 4/19/21 Dep. Tr. at 110, 111,
156.) Under these circumstances, the Court finds nothing inappropriate about Mizrahi seeking to
limit the break at issue to less than another 20 minutes. And as for Mizrahi’s purported
“badgering and abusive questioning in the form of mischaracterizing answers and re-asking
questions that had been asked upward of seven times,” the Court, after close review of the
transcripts, finds no evidence of Mizrahi badgering Plaintiff or willfully mischaracterizing answers.
As for his allegedly “re-asking” questions, the Court finds that nearly every time Finkelstein
complained of a question having been asked multiple times, either Finkelstein was interrupting
20

Mizrahi by objecting during the setup to a question (see, e.g., 8/26/21 Dep. Tr. at 19); the
question was not in fact the same as a prior, similar question (see, e.g., id. at 21); or Plaintiff had
declined to substantively answer the question when Mizrahi had previously asked it (see, e.g., id.
at 51). Indeed, as a general matter, the Court reads the transcripts as involving a certain degree
of repetition principally as a result of (1) Plaintiff’s communication difficulties, as acknowledged
by Finkelstein in his suggestion that the deposition be conducted by written questions rather
than live questioning; (2) Finkelstein’s disruptive interruptions of Mizrahi’s questioning; and (3)
Plaintiff’s frequently uncooperative, nonresponsive answers to Mizrahi’s legitimate questions.
Accordingly, the Court declines to impose sanctions against Mizrahi.
II.

Finkelstein’s Deposition Conduct Warrants Sanctions
A.

Sanctions Against Finkelstein Are Warranted

In contrast, the Court will impose sanctions on Finkelstein. As set forth in Background
Sections III and VI, supra, Plaintiff’s deposition transcripts are riddled with Finkelstein’s improper
speaking objections, which appear designed to coach Antolini, in violation of Federal Rule of Civil
Procedure 30(c)(2) and several Orders of the Court. The transcripts also reflect a host of improper
instructions not to answer where Finkelstein had no lawful basis to preclude questioning, also in
violation of Rule 30(c)(2) and express Orders of the Court. As discussed above, Finkelstein’s
ostensible defense—that Mizrahi’s questions were abusive, oppressive and in bad faith—does
not withstand scrutiny. 18 The April 19 transcript also reflects that Finkelstein improperly

In any event, if Finkelstein’s had a legitimate basis for his concerns, his remedy was to suspend the
deposition and move to terminate or limit, not simply to instruct Plaintiff not to answer. See Fed. R. Civ.
P. 30(d)(3)(A); Learning Int’l, Inc. v. Competence Assur. Sys. Inc., No. 90-CV-02032 (MBM), 1990 WL
204163, at *3 (S.D.N.Y. Dec. 13, 1990) (“If [counsel] objected to what he regarded as forays into matters
18

21

terminated that deposition once Mizrahi began to ask questions concerning his arrest, thereby
delaying completion of the deposition by over four months.
The Court thus finds that Finkelstein impeded and frustrated the fair examination of
Plaintiff, warranting sanctions pursuant to Rule 30(d)(2). See, e.g., Fashion Exch. LLC v. Hybrid
Promotions, LLC, 333 F.R.D. 302, 307 (S.D.N.Y. 2019) (finding sanctions appropriate under Rule
30(d)(2) where “Plaintiff’s counsel’s conduct . . . unnecessarily extended the length of Plaintiff’s
[] deposition and seriously disrupted Defendants’ ability to obtain testimony from Plaintiff”);
Morales v. Zondo, Inc., 204 F.R.D. 50, 54 (S.D.N.Y. 2001) (imposing sanctions under Rule 30(d)(2)
on counsel whose “interruptions were pervasive, and clearly intended to cause problems for
[opposing counsel] in his examination”). The Court further finds that Finkelstein deliberately
violated repeated Orders of the Court, warranting sanctions pursuant to Rule 37(b)(2). The Court
further finds that Finkelstein’s conduct in connection with Plaintiff’s deposition, when viewed in
its totality, “can only be interpreted as a continuous series of ill-motivated attempts to disrupt
and interfere with [Mizrahi’s] ability to conduct Plaintiff’s deposition and elicit relevant testimony
responsive to [his] questions,” warranting sanctions pursuant to Section 1927 and the Court’s
inherent powers. Scott-Iverson v. Indep. Health Ass’n, Inc., No. 13-CV-00451 (LJV) (LGF), 2017 WL
35453, at *9 (W.D.N.Y. Jan. 4, 2017); see also Unique Concepts, Inc. v. Brown, 115 F.R.D. 292, 293
(S.D.N.Y. 1987) (imposing sanctions under Section 1927 and the Court’s inherent powers where
counsel’s “attempt in his motion papers to justify his behavior as provoked [wa]s utterly noncompelling”).

that were not to be the subject of the deposition, he could have sought a ruling from the court. He was
not free simply to pepper the proceeding with interruptions and directions not to answer.”).

22

B.

The Court Declines To Impose A Terminal Sanction

Finkelstein’s contumacious deposition misconduct notwithstanding, the Court declines at
this stage to impose Defendants’ requested sanction of dismissal of Plaintiff’s action. (See Defs’
Mem. at 23-29.) The well-settled preference in this Circuit is for courts to resolve litigation
disputes “on their merits, rather than through a discovery sanction.” Scantibodies Lab'y, Inc. v.
Church & Dwight Co., No. 14-CV-02275 (JGK) (DF), 2016 WL 11271874, at *34-35 (S.D.N.Y. Nov.
4, 2016), report and recommendation adopted, 2017 WL 605303 (S.D.N.Y. Feb. 15, 2017)
(declining to impose preclusive sanctions where “less drastic sanctions would be sufficient to
address the prejudice caused by Plaintiff’s discovery abuses”). Here, where Plaintiff’s and
Finkelstein’s misconduct has obstructed and prolonged proceedings in this action but has not
caused any irreversible prejudice—e.g., by destroying evidence—the Court finds that dismissal
would be incongruous and overly harsh. 19 See In re Doria/Memon Disc. Stores Wage & Hour Litig.,
No. 14-CV-07990, 2018 WL 1353261, at *2 (S.D.N.Y. Mar. 15, 2018) (“A court must consider the
extent to which the prevailing party has been prejudiced by the defaulting party’s noncompliance
and must ensure that any sanction imposed is just and commensurate with the failure to
comply.” (internal quotation marks and citation omitted)). Further, the Court “has at least some
concern that the preclusive sanction requested by Defendant[s] would unduly penalize Plaintiff
for the misconduct of [his] counsel.” Scantibodies Lab'y, Inc., 2016 WL 11271874, at *34.
Accordingly, the Court will not impose sanctions foreclosing consideration of the merits of
Plaintiff’s claims.
While Defendants argue that Finkelstein “[o]bstructed the[ir] [e]licitation of [m]aterial[] [i]nformation”
by altogether preventing them from obtaining testimony from Plaintiff in response to certain lines of
inquiry (see Defs.’ Reply at 10), Defendants have not sought to compel further testimony from Plaintiff.
19

23

C.

The Court Will Impose Monetary Sanctions Against Finkelstein

After carefully considering the record before it, the Court, in its discretion, imposes
monetary sanctions against Finkelstein in the amount of $6,250.00, plus the reasonable fees and
costs incurred by Defendants in seeking sanctions and opposing Plaintiff’s motion for sanctions.
Having repeatedly and explicitly warned Finkelstein that the Court would impose
monetary sanctions on him for “each and every” speaking objection he made, the Court will carry
through on this promise. Accordingly, from the conclusion of the Court’s second call with the
parties during the April 19 deposition, through to the end of the August 26 continued deposition,
the Court will levy on Finkelstein a sanction of $50.00 for each speaking objection, and $100.00
for each unwarranted instruction not to answer. 20 Cf. Scott-Iverson, 2017 WL 35453, at *9
(imposing “a reasonable fine [ranging from $50.00 to $500.00] for each occurrence” of
“unwarranted interruptions and objections”). By the Court’s count, there were 39 instances of
the former, and 43 instances of the latter, for an aggregate of $6,250.00.
In addition, Finkelstein shall pay Defendants their reasonable attorneys’ fees and costs
incurred in preparing the briefing necessitated by Finkelstein’s deposition misconduct. See, e.g.,
Syntel Sterling Best Shores Mauritius Ltd., 328 F.R.D. at 123-24 (“Under Rule 37(b), the Court
‘must’ order [the plaintiff] to pay the reasonable expenses, including attorneys’ fees, caused by
its failure to comply with the Court’s Orders, unless the failure was substantially justified or other
circumstances make an award of expenses unjust.”). That briefing includes the following: (1)
Defendants’ June 18, 2021 brief requesting sanctions against Finkelstein (ECF No. 182); (2)
The Court will not count instances where Finkelstein instructed Plaintiff not to answer on the basis of
the attorney-client privilege or of a Court Order—notwithstanding the Court’s belief that the majority of
these invocations lacked merit.
20

24

Defendants’ September 14, 2021 brief in further support of that request and in response to the
Court’s Order to Show Cause (ECF No. 235); (3) Defendants’ October 15, 2021 opposition to
Plaintiff’s motion for sanctions (ECF No. 248); and (4) Defendants’ October 18, 2021 reply brief
in further support of their request for sanctions (ECF No. 249) (collectively, “Defendants’
Sanctions Briefing”). See Scantibodies Lab'y, Inc., 2016 WL 11271874, at *37 (“It is generally
appropriate, at a minimum, to require a party that has not complied with its discovery obligations
to pay the reasonable fees and costs incurred by the moving party . . . in seeking discovery
sanctions.”); SS&J Morris, Inc. v. I. Appel Corp., No. 97-CV-06938 (LMM) (DFE), 2000 WL 1028680,
at *7 (S.D.N.Y. July 26, 2000) (awarding party “all of the reasonable expenses and attorneys’ fees
for bringing [its own] sanctions motion and for opposing [its adversary’s] cross-motion”).
III.

Sanctions Against Plaintiff And Finkelstein For Cancellation Of The July 23 Deposition
After having received proper notice, Plaintiff failed to appear for his continued deposition

on July 23. Thus, Defendants are further entitled to sanctions pursuant to Fed. R. Civ. P.
37(d)(1)(A)(i). Under Rule 37, the Court “must” require Plaintiff or his attorney or both “to pay
the reasonable expenses, including attorney’s fees, caused by [Plaintiff’s] failure [to attend the
continued deposition], unless the failure was substantially justified or other circumstances make
an award of expenses unjust.” See Fed. R. Civ. P. 37(d)(3).
Here, the conduct of Plaintiff and Finkelstein was not substantially justified, nor is an
award of attorneys’ fees unjust. The two excuses proffered by Plaintiff for not going forward with
the July 23 deposition—i.e., his desire to accompany his wife to the hospital in connection with
her broken arm and his grandson not being available to assist with the video for his deposition—
do not provide substantial justification. On July 7, 2021, when Finkelstein filed a letter with the
25

Court stating that he and Plaintiff were available for Plaintiff’s continued deposition on July 23,
Plaintiff’s wife already had broken her arm and his grandson already had left for Italy, or was
about to do so. Plaintiff’s deposition was scheduled for three hours commencing at 10 a.m. on
July 23. Even assuming that Plaintiff’s wife needed accompaniment to her hospital appointment,
Plaintiff has not made a showing why the appointment could not have been scheduled for the
afternoon of July 23 or why someone else could not have accompanied her. Moreover, Plaintiff
and Finkelstein had ample time after Plaintiff’s grandson’s departure to arrange for Plaintiff to
obtain assistance with the video for his deposition; no substantial justification exists for their
failure to do so. Thus, the Court finds that an award of the reasonable attorneys’ fees incurred
by Defendants in connection with the cancelled court-ordered deposition on July 23 is
appropriate.
Rule 37(d)(3) permits the imposition of sanctions against “the party failing to act, the
attorney advising that party, or both.” Fed. R. Civ. P. 37(d)(3). Because both Plaintiff and
Finkelstein bear some fault for the video deposition not proceeding on July 23 (i.e., Plaintiff
decided on his own not to make himself available on July 23, and Finkelstein and Plaintiff failed
to take steps to ensure that the deposition could proceed by video), the Court imposes the
sanctions upon Plaintiff and Finkelstein jointly and severally. The Court next turns to the amount
of fees to award.
“A district court exercises ‘considerable discretion’ in awarding attorneys’ fees.” City of
Almaty, Kazakhstan v. Ablyazov, No. 15-CV-05345 (AJN) (KHP), 2020 WL 614656, at *1 (S.D.N.Y.
Feb. 7, 2020) (citations omitted). “Attorneys’ fees are awarded by determining a presumptively
reasonable fee, or a ‘lodestar,’ reached by multiplying a reasonable hourly rate by the number of
26

hours reasonably expended.” Id. (citations omitted). In their July 27, 2021 submission to the
Court, Defendants requested an award of attorneys’ fees in the amount of $1,881.25 for their
counsel’s preparation for the cancelled July 23 deposition. (See Defs.’ July 27 Ltr. at 3.)
Defendants arrived at this figure by claiming 5.25 hours billed by Mizrahi, at an hourly rate of
$225.00, and 1.75 hours billed by a more senior attorney, Joshua Levin-Epstein (“Levin-Epstein”),
at an hourly rate of $400.00. (See Time Records, ECF No. 207-1.)
The Court finds that the $225.00 hourly rate for Mizrahi is reasonable. (See 9/14/20 Order,
ECF No. 79.) In addition, based upon its review of the time records submitted by Defendants, the
Court, in its discretion, finds that 2.5 of the hours claimed were reasonably expended by Mizrahi
in connection with preparations for the continued deposition. The Court further finds it
appropriate for Defendants’ counsel to be reimbursed for an additional hour at Mizrahi’s rate for
his appearances at the telephone conferences the Court held as a result of Plaintiff’s cancellation
of the July 23 continued deposition, first on the afternoon of July 23, and then, after Plaintiff
failed to appear at that conference, on August 4. Thus, reimbursing Defendants for a total of 3.5
hours at a $225.00 hourly rate, in the Court’s view, achieves “rough justice.” See Fox v. Vice, 563
U.S. 826, 838, (2011) (“The essential goal in shifting fees . . . is to do rough justice, not to achieve
auditing perfection.”).
The Court declines to award legal fees based upon the 1.75 hours billed by Levin-Epstein.
Given that Plaintiff’s continued deposition was not to exceed three hours, which was the
approximate amount of time Mizrahi had left in his questioning when Finkelstein terminated the
original deposition, the Court finds it is not reasonable to pass along to Plaintiff the cost of LevinEpstein’s time. See Errant Gene Therapeutic, LLC v. Sloan-Kettering Inst. for Cancer Rsch., 286 F.
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Supp. 3d 585, 589 (S.D.N.Y. 2018) (reducing fee award for hours spent by additional litigation
team member), aff’d, No. 15-CV-02044 (AJN) (SDA), 2018 WL 3094913 (S.D.N.Y. June 21, 2018),
aff’d, 768 F. App’x 141 (2d Cir. 2019).
Accordingly, the Court hereby awards $787.50 to Defendants for the cancelled July 23
deposition (i.e., 3.5 hours spent by Mizrahi times $225.00 per hour).
CONCLUSION
By reason of the foregoing, Plaintiff’s motion for sanctions is DENIED, and Defendants’
request for sanctions is GRANTED IN PART and DENIED IN PART.
The Court imposes monetary sanctions against Finkelstein in the amount of $6,250.00 for
his conduct during Plaintiff’s deposition. No later than thirty days from the date of this Opinion
and Order, Finkelstein shall pay such amount to the Clerk of Court.
The Court further imposes monetary sanctions against Finkelstein in the amount of
Defendants’ reasonable attorneys’ fees and costs incurred in connection with the parties’ crossrequests for sanctions. No later than fourteen days from the date of this Opinion and Order,
Defendants’ counsel shall file with the Court a declaration setting forth the fees and costs
incurred for preparation of Defendants’ Sanctions Briefing. No later than two weeks thereafter,
Plaintiff may file any objection in a letter not to exceed three pages.
In addition, the Court imposes monetary sanctions against Plaintiff and Finkelstein, jointly
and severally, in the amount of $787.50 for cancellation of the court-ordered July 23 deposition.
No later than thirty days from the date of this Opinion and Order, Finkelstein and/or Plaintiff shall
pay such amount to Defendants.
The Clerk of Court is respectfully directed to close the gavel at ECF No. 245.
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SO ORDERED.
Dated:

November 19, 2021
New York, New York
________________________________
STEWART D. AARON
United States Magistrate Judge

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