Opinion
November 29, 1990
Appeal from the Supreme Court, New York County (Martin Stecher, J.).
Plaintiffs brought this action seeking the sum of $42,000 for performance of electrical work in connection with construction, renovations and improvements performed on the Long Island Railroad Hillside Support Facility, in which defendant Silverite was party to the contract, and in which defendant Fidelity issued a bond guaranteeing Silverite's payment under the contract. The plaintiffs have offered, as a deposition witness, a principal of plaintiff Federal Chandros. This witness has refused to answer any substantive questions on the assertion of his privilege pursuant to the Fifth Amendment of the U.S. Constitution, and the plaintiffs have not offered any other knowledgeable witness. After several attempts to accommodate the plaintiffs, the IAS court dismissed the plaintiffs' complaint for failure to provide disclosure.
The complaint was properly dismissed. As the IAS court noted, a party may not use a Fifth Amendment privilege as a shield to resist discovery while simultaneously pressing claims against the party seeking discovery (Steinbrecher v. Wapnick, 24 N.Y.2d 354; Laverne v. Incorporated Vil. of Laurel Hollow, 18 N.Y.2d 635, appeal dismissed 386 U.S. 682). This prohibition applies with equal force where the privilege is asserted by the principal of a corporate plaintiff (see, e.g., Dyno-Bite, Inc. v. Travelers Cos., 80 A.D.2d 471, appeal dismissed 54 N.Y.2d 1027).
Concur — Murphy, P.J., Kupferman, Milonas, Ellerin and Rubin, JJ.