Details: Written by: Staff report; Category: Breaking News - Daily; Published: 28 July 2024

In NY FDCPA lawsuit plaintiff’s attorney is ordered to pay $4,358.93 for Conserve's fees. In the case of Adams v. Continental Service Group, Plaintiff's motion to withdraw is denied without prejudice and Conserve's motion for fees and costs is granted. Zemel is directed to reimburse Conserve the sum of $4,358.93 in attorneys' fees and costs. Judge MARIAN W. PAYSON wrote: "Although I find that an award of reasonable expenses is warranted, there is little support in the record for finding Adams – as opposed to her counsel – responsible..."

for her failure to appear. As noted above, the record does not establish that Zemel ever provided Adams a copy of the deposition notice or that she was ever counseled concerning the consequences of failing to appear. e support in the record for finding Adams – as opposed to her counsel – responsible for her failure to appear. As noted above, the record does not establish that Zemel ever provided Adams a copy of the deposition notice or that she was ever counseled concerning the consequences of failing to appear.

Although I find that an award of reasonable expenses is warranted, there is little support in the record for finding Adams – as opposed to her counsel – responsible for her failure to appear. As noted above, the record does not establish that Zemel ever provided Adams a copy of the deposition notice or that she was ever counseled concerning the consequences of failing to appear. Although I find that an award of reasonable expenses is warranted, there is little support in the record for finding Adams – as opposed to her counsel – responsible for her failure to appear. As noted above, the record does not establish that Zemel ever provided Adams a copy of the deposition notice or that she was ever counseled concerning the consequences of failing to appear.

To read the case, clickhere.

On this record, I find that plaintiff has failed to show substantial justification for her non-appearance for the noticed deposition or that the imposition of sanctions would otherwise be unjust. Accordingly, I find an award of reasonable expenses caused by Adams’s failure to attend the deposition is warranted pursuant to Rule 37(d) of the Federal Rules of Civil Procedure. See John Wiley & Sons, Inc., 298 F.R.D. at 149 (“it is sufficient here that plaintiffs have shown that [defendant] improperly refused to appear for his deposition and caused plaintiffs to incur unnecessary expenses[;] . . . because defendants have failed to show substantial justification for their actions or that imposing sanctions would be otherwise unjust, we will award plaintiffs their reasonable expenses caused by [defendant’s] failure to attend his deposition”); Nevarez v. Hunt, 2013 WL 1636669, *1 (W.D.N.Y. 2013) (“the imposition of costs is an appropriate sanction for plaintiff’s unexcused failure to appear for his deposition, particularly since preparation for the deposition necessitated considerable time and effort”) (internal quotations omitted).Although I find that an award of reasonable expenses is warranted, there is little support in the record for finding Adams – as opposed to her counsel – responsible for her failure to appear. As noted above, the record does not establish that Zemel ever provided Adams a copy of the deposition notice or that she was ever counseled concerning the consequences of failing to appear. Indeed, the record demonstrates that Zemel made no attempts to contact Adams afterreceipt of the deposition notice, instead relying on CRLA’s minimal efforts to communicate with his client on his behalf. Zemel’s inaction – particularly given his client’s apparent failure to

14 respond to other communications – caused Conserve to incur unnecessary costs and fees and resulted in inefficient and wasteful litigation before this Court.

12 The record demonstrates that Little emailed the deposition notice to Zemel on February 20, 2024. At the time Zemel received the notice, he had not heard from his client for more than two months. Despite this, neither Zemel nor any CRLA attorneys made any immediate attempt to contact Adams. Rather, they waited approximately one week before even attempting to inform Adams that she had been noticed to appear for a deposition. According to Schwartz, on February 26, 2024, he left a voicemail for Adams “concerning the deposition dateand time.” There is nothing in the record to suggest that Zemel or CRLA ever provided Adams a copy of the deposition notice or advised her of the potential consequences of a failure to attend. Notably, neither Zemel nor CRLA made any other attempt to contact Adams concerning the deposition until March 19 – the day before the deposition was scheduled to occur. In the meantime, Zemel made no effort to communicate to Little that he had lost contact with his client. Instead, he remained silent while Little continued to expend time and resources in defending Conserve against Adams’s claims and in preparing for Adams’s deposition. Astoundingly, when Little contacted Zemel on March 15 to confirm the deposition, Zemel made no effort to contact his client. Instead, he waited until March 18 to respond to Little, and, rather than explaining the situation, Zemel represented that he was “waiting to hear from [his] client” – a representation which, based on the record before the Court, lacked factual basis. The following day, Zemel represented to Little that he had heard back from his client and that she was unavailable to attend. Zemel concedes that this representation was inaccurate, maintaining that it resulted from his misreading of an email from either his staff or CRLA. Of course, had Zemel not relied on others – including another law firm that has never entered a notice of appearance in this case – to communicate with his client on his behalf, such

13 miscommunications on important issues would be less likely to occur. In any event, his misrepresentation permitted the false impression that Adams remained in contact with her counsel and was actively prosecuting her claims. On this record, I find that plaintiff has failed to show substantial justification for her non-appearance for the noticed deposition or that the imposition of sanctions would otherwise be unjust. Accordingly, I find an award of reasonable expenses caused by Adams’s failure to attend the deposition is warranted pursuant to Rule 37(d) of the Federal Rules of Civil Procedure. See John Wiley & Sons, Inc., 298 F.R.D. at 149 (“it is sufficient here that plaintiffs have shown that [defendant] improperly refused to appear for his deposition and caused plaintiffs to incur unnecessary expenses[;] . . . because defendants have failed to show substantial justification for their actions or that imposing sanctions would be otherwise unjust, we will award plaintiffs their reasonable expenses caused by [defendant’s] failure to attend his deposition”); Nevarez v. Hunt, 2013 WL 1636669, *1 (W.D.N.Y. 2013) (“the imposition of costs is an appropriate sanction for plaintiff’s unexcused failure to appear for his deposition, particularly since preparation for the deposition necessitated considerable time and effort”) (internal quotations omitted).Although I find that an award of reasonable expenses is warranted, there is little support in the record for finding Adams – as opposed to her counsel – responsible for her failure to appear. As noted above, the record does not establish that Zemel ever provided Adams a copy of the deposition notice or that she was ever counseled concerning the consequences of failing to appear. Indeed, the record demonstrates that Zemel made no attempts to contact Adams afterreceipt of the deposition notice, instead relying on CRLA’s minimal efforts to communicate with his client on his behalf. Zemel’s inaction – particularly given his client’s apparent failure to

14 respond to other communications – caused Conserve to incur unnecessary costs and fees and

resulted in inefficient and wasteful litigation before this Court.12

The record demonstrates that Little emailed the deposition notice to Zemel on February 20, 2024. At the time Zemel received the notice, he had not heard from his client for more than two months. Despite this, neither Zemel nor any CRLA attorneys made any immediate attempt to contact Adams. Rather, they waited approximately one week before even attempting to inform Adams that she had been noticed to appear for a deposition. According to Schwartz, on February 26, 2024, he left a voicemail for Adams “concerning the deposition dateand time.” There is nothing in the record to suggest that Zemel or CRLA ever provided Adams a copy of the deposition notice or advised her of the potential consequences of a failure to attend. Notably, neither Zemel nor CRLA made any other attempt to contact Adams concerning the deposition until March 19 – the day before the deposition was scheduled to occur. In the meantime, Zemel made no effort to communicate to Little that he had lost contact with his client. Instead, he remained silent while Little continued to expend time and resources in defending Conserve against Adams’s claims and in preparing for Adams’s deposition. Astoundingly, when Little contacted Zemel on March 15 to confirm the deposition, Zemel made no effort to contact his client. Instead, he waited until March 18 to respond to Little, and, rather than explaining the situation, Zemel represented that he was “waiting to hear from [his] client” – a representation which, based on the record before the Court, lacked factual basis. The following day, Zemel represented to Little that he had heard back from his client and that she was unavailable to attend. Zemel concedes that this representation was inaccurate, maintaining that it resulted from his misreading of an email from either his staff or CRLA. Of course, had Zemel not relied on others – including another law firm that has never entered a notice of appearance in this case – to communicate with his client on his behalf, such

14 respond to other communications – caused Conserve to incur unnecessary costs and fees and

resulted in inefficient and wasteful litigation before this Court.On this record, I find that plaintiff has failed to show substantial justification f

or her non-appearance for the noticed deposition or that the imposition of sanctions would otherwise be unjust. Accordingly, I find an award of reasonable expenses caused by Adams’s failure to attend the deposition is warranted pursuant to Rule 37(d) of the Federal Rules of Civil Procedure. See John Wiley & Sons, Inc., 298 F.R.D. at 149 (“it is sufficient here that plaintiffs have shown that [defendant] improperly refused to appear for his deposition and caused plaintiffs to incur unnecessary expenses[;] . . . because defendants have failed to show substantial justification for their actions or that imposing sanctions would be otherwise unjust, we will award plaintiffs their reasonable expenses caused by [defendant’s] failure to attend his deposition”); Nevarez v. Hunt, 2013 WL 1636669, *1 (W.D.N.Y. 2013) (“the imposition of costs is an appropriate sanction for plaintiff’s unexcused failure to appear for his deposition, particularly since preparation for the deposition necessitated considerable time and effort”) (internal quotations omitted).Although I find that an award of reasonable expenses is warranted, there is little support in the record for finding Adams – as opposed to her counsel – responsible for her failure to appear. As noted above, the record does not establish that Zemel ever provided Adams a copy of the deposition notice or that she was ever counseled concerning the consequences of failing to appear. Indeed, the record demonstrates that Zemel made no attempts to contact Adams afterreceipt of the deposition notice, instead relying on CRLA’s minimal efforts to communicate with his client on his behalf. Zemel’s inaction – particularly given his client’s apparent failure to

14 respond to other communications – caused Conserve to incur unnecessary costs and fees and resulted in inefficient and wasteful litigation before this Court.6 On this record, I find that Zemel – not Adams –was primarily responsible for the failed deposition and should bear the attendant fees and costs.