On appeal from Superior Court of New Jersey, Law Division, Passaic County.
Approved for Publication January 24, 1997.
Before Judges Petrella, Landau and Wallace. The opinion of the Court was delivered by Landau, J.A.D.
The opinion of the court was delivered by: Landau
The opinion of the Court was delivered by
Appellant, Amirali Y. Haidri, Esq. (Haidri), attorney for plaintiffs in the underlying action, appeals, upon leave granted, from a Law Division order directing Haidri to pay a money sanction to defendants arising out of the refusal of plaintiffs' expert to testify at a deposition.
These are the facts. On May 29, 1990, plaintiff, Rena Pontidis suffered a fall at Skaters World of New Jersey in Wayne, New Jersey. She filed a complaint against defendants Kris Shavelli, Dina Shavelli, Peter Koukounas, Konstantinos Koukounas, Ioana Koukounas, Skaters World of New Jersey and various fictitious defendants. Shavelli filed an answer and a third party complaint against St. George's Greek Orthodox Church of Clifton. Skaters World filed an answer and a third party complaint against American Trust Insurance Co. and George W. Payne & Co. St. George's moved for and was granted summary judgment on November 10, 1993.
On November 25, 1995, DeYoe Heissenbuttel and Mattia (DeYoe), attorneys for defendants Shavelli, noticed the deposition of John H. Hanst (Hanst), plaintiffs' recreational hazard expert. The deposition, initially scheduled for January 24, 1996, was changed to January 26, 1996, at the DeYoe offices.
Michael Agnello, a per diem associate of Haidri, certified that he called the DeYoe firm three days before the deposition and informed them that Hanst required a $500 deposit for his testimony. Agnello said that he was informed by Hanst's wife on the same day that $500 was the "reservation fee" and that Hanst's fee for testifying was $250 per hour. According to Agnello, immediately upon completion of the conversation with Mrs. Hanst, he called DeYoe and informed them that the $500 was only a reservation fee and that the testimony fee was an additional $250 per hour.
The certification of Marilyn Moore, the office manager at DeYoe, indicated that "plaintiff's attorney" called, but only advised that Hanst "was charging a $500.00 fee for testifying at his deposition" and that "if Mr. Hanst's testimony went over two  hours time, Mr. Hanst charged $250.00 per hour". Moore maintained that she informed plaintiffs' counsel that the deposition probably would not take more than two hours. She promptly sent a $500.00 check to Haidri for submission to Hanst.
On January 26, 1996, all parties gathered in the DeYoe offices for Hanst's deposition. As the deposition was about to begin, Hanst inquired whether the check for the balance of his testimony was "in the room". Edward Martin, an attorney at DeYoe, consulted with a partner in his firm. Martin was informed that because the "arrangement was quite clear that this amount [$500] included testimonial time only, not travel time" there was going to be no further payment unless the deposition extended beyond two hours.
Haidri suggested that the defendants place $500 in escrow until the dispute could be resolved by the court. This was apparently acceptable to Hanst. Defendants' counsel refused to issue another check and Mr. Hanst left without testifying. *fn1
Defendants then filed a motion on February 6, 1996, petitioning the court to: (1) compel Hanst's deposition; (2) set a reasonable fee for Hanst's appearance; (3) set a reasonable amount for travel time and expenses for the expert; (4) award defendants counsel fees for the motion and (5) preclude ...