Federal Chandros, Inc. v. Silverite Construction Co.

Order, Supreme Court, New York County (Martin Stecher, J.), entered on July 17, 1989, which granted a motion by defendant Silverite Construction Company to dismiss the complaint, granted a motion by defendant Fidelity and Deposit Company of Maryland for reargument of a prior cross motion to dismiss the complaint and, on reargument, granted the motion, denied plaintiffs’ cross motion for reargument of a prior motion by Silverite, and ordered the clerk to enter judgment dismissing the complaint, unanimously affirmed, with costs.

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 asser*316tion of his privilege pursuant to the Fifth Amendment of the US 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 NY2d 354; Laverne v Incorporated Vil. of Laurel Hollow, 18 NY2d 635, appeal dismissed 386 US 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 AD2d 471, appeal dismissed 54 NY2d 1027). Concur—Murphy, P. J., Kupferman, Milonas, Ellerin and Rubin, JJ.