Access Capital, Inc. v. DeCicco

Rosenberger, J.

(dissenting). In granting and affirming summary judgment to plaintiff, the trial court and the majority rely on the defendant’s assertion of his Fifth Amendment privilege against self-incrimination in response to the allegations of the complaint and ignore the implications of what the majority characterizes as defendant’s “laundry list of affirmative defenses.” The plaintiff’s motion for summary judgment completely ignored the affirmative defenses. The motion court did not, in its oral decision, refer to them at all. On this ground alone, summary judgment was inappropriate.

Further, among those affirmative defenses were defendant’s assertions that he did not inflict or proximately cause plaintiff’s alleged injuries and that he committed no misrepresentation or fraudulent concealment of any material facts upon which plaintiff could have relied. Those averments, although denominated “affirmative defenses,” are essentially denials of material elements of the causes of action asserted against him. Questions of fact thus exist which are not appropriate for summary *55judgment, particularly summary judgment premised on defendant’s assertion of his Fifth Amendment privilege (see e.g. Beece v Guardian Life Ins. Co. of Am., 110 AD2d 865, 867).

The law is clear that adverse inferences may be drawn against a defendant who invokes the privilege in a civil case (see Baxter v Palmigiano, 425 US 308, 316-317; Marine Midland Bank v Russo Produce Co., 50 NY2d 31, 42; Matter of DeBonis v Corbisiero, 155 AD2d 299, lv denied 75 NY2d 709, cert denied 496 US 938), however, it does not compel such inferences, nor does it relieve the plaintiff of his obligation to prove a case before he becomes entitled to a judgment (Steinbrecher v Wapnick, 24 NY2d 354, 365; Stuart v Tomasino, 148 AD2d 370, 373). Plaintiff has not met that obligation here.

While Mehring’s affidavit and other documentary evidence submitted by plaintiff may establish that a fraud was perpetrated upon plaintiff, it does not make out a prima facie case that defendant was indeed “Michael Macalary” or that he took part in the fraud. Mehring stated: “I later found out that there was in fact no one named Michael Macalary at Bear Stearns, but rather that it was defendant * * * who pretended to be Michael Macalary.” There is nothing in Mehring’s affidavit establishing his personal knowledge that defendant was indeed Michael Macalary, nor is there anything identifying the source from which Mehring assertedly “found out” that information. The only other document annexed to the moving papers that makes any reference to defendant is the New Jersey indictment, which, given the constitutional presumption of innocence, cannot serve as evidence in support of plaintiffs summary judgment motion against defendant.

Federal courts have held that a party who asserts the privilege against self-incrimination in a civil case must bear the consequence of lack of evidence, and a claim of privilege will not prevent an adverse finding or even summary judgment if the litigant does not present sufficient evidence to satisfy his evidentiary burden (see e.g. United States v Certain Real Prop. & Premises Known as 4003-4005 5th Ave., Brooklyn, N.Y., 55 F3d 78, 83). However, I am aware of no case in which a New York court granted summary judgment in a civil action premised solely upon a defendant’s assertion of his Fifth Amendment rights.

Moreover, the Second Circuit, in describing the tensions that exist between the assertion of Fifth Amendment rights on the one hand and the rights of parties who seek civil recompense *56against those who invoke the Fifth Amendment to fully litigate their claims, has cautioned that trial courts should not

“through inappropriate procedural remedies or unwarranted sanctions, unduly burden [ ] litigants’ valid attempts to seek the protection that the privilege against self-incrimination provides * * * [W]hen there is nothing to suggest that the Fifth Amendment * * * was used abusively or to gain an unfair tactical advantage * * * a trial court [should] consider [ ] the relevant factors and act[ ] with moderation to accommodate both a litigant’s valid Fifth Amendment interests and the opposing parties’ needs in having litigation conducted fairly * * * ” (Id. at 85.)

Application of the Second Circuit’s cogent and balanced advice leads to the conclusion that the motion court abused its discretion in denying defendant’s cross motion for a stay, limited in whatever way would be most appropriate, pending resolution of the New Jersey criminal case, as we have previously determined, in similar circumstances, is the appropriate course of action (see Britt v International Bus Servs., 255 AD2d 143).

Mazzarelli, J.P., and Gonzalez, J., concur with Rubin, J.; Rosenberger, J., dissents in a separate opinion.

Order, Supreme Court, New York County entered September 10, 2001, affirmed, without costs.