Azzarmi v. 55 Fulton Market

Background

Defendants 55 Fulton Market and Angel Palma moved to dismiss Aasir Azzarmi’s defamation action as a sanction under the court’s inherent authority. They argued that Azzarmi repeatedly failed to follow court instructions and withheld important discovery. The motion focused on Azzarmi’s refusal to answer numerous deposition questions, primarily by invoking the Fifth Amendment, and on Azzarmi’s participation in Palma’s deposition by Zoom without appearing on camera. Defendants also initially complained about an alleged effort involving witness Stephanie Acosta to avoid service of a deposition subpoena, but withdrew that part of the motion.

The disputed deposition questions concerned, among other subjects, Azzarmi’s residence, use of other names, education, financial support, and employment applications. They also concerned Azzarmi’s statements about gender presentation and mobility. The opinion states that Azzarmi initially refused to answer several questions about those subjects but later provided much of the requested information. The court noted that Azzarmi had made detailed voluntary statements about gender and disability status in the case, and therefore could not invoke the Fifth Amendment to refuse questions about the details of those statements. The court also stated that some of the unanswered questions were relevant to issues including subject-matter jurisdiction and credibility.

Court’s Analysis

The court found that Azzarmi had engaged in frequent discovery and other pretrial misconduct, including numerous violations of court orders. Even so, the court emphasized that its inherent powers must be used with restraint and that outright dismissal is a particularly severe sanction when a lesser measure can address the harm.

The court concluded that Azzarmi had not shown a reasonable basis to fear that answers to certain unanswered questions would provide evidence for a criminal prosecution. But defendants’ counsel declined at the hearing to reopen the deposition to obtain those answers. Rather than dismissing the action, the court imposed a preclusion order. A preclusion order prevents a party from presenting specified evidence. Here, it barred Azzarmi from offering favorable written or oral testimony about any question Azzarmi refused to answer at the deposition.

The court separately declined to impose a formal sanction for Azzarmi’s refusal to appear on camera during Palma’s deposition. It stated that defendants had not identified authority requiring Azzarmi to appear on camera for that purpose. The order did not prevent defendants from presenting evidence of the refusal or asking the jury to draw appropriate inferences from it. The court also noted that defendants could request a jury instruction allowing, but not requiring, an inference that a refused answer would have been unfavorable to Azzarmi’s interests.

Ruling

Judge Moses denied the defendants’ motion to the extent it sought terminating sanctions, meaning sanctions that would end the lawsuit. The court instead precluded Azzarmi from offering favorable testimony about the questions refused at deposition. The court’s conclusion states that the defendants’ motion was otherwise DENIED. Because discovery had concluded, the court set December 23, 2022, as the deadline for any summary-judgment motions.