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decided: April 10, 1969.


Steinbrecher v. Wapnick, Judges Burke, Bergan and Keating concur with Chief Judge Fuld; Judge Breitel dissents and votes to affirm in an opinion in which Judges Scileppi and Jasen concur.

Author: Fuld

 The plaintiff, a used car dealer, brought the present civil action, alleging that the defendant Wapnick, in concert with several others, had fraudulently sold him 17 stolen automobiles. When Wapnick was examined before trial, he refused to answer questions concerning his participation in the sale of the stolen vehicles on the ground that the answers would tend to incriminate him. The primary question posed by this appeal is whether he had previously waived his right to do so by virtue of statements he had earlier made in another connection.

In 1961, when Wapnick asserted his privilege, two indictments, charging him with activities similar to those alleged in the complaint, were pending against him -- one in a Federal court and another in Queens County.*fn1 Pointing to Wapnick's refusal to respond to questions at that examination before trial, the plaintiff sought an order, under section 299 of the former Civil Practice Act (superseded by CPLR 3126), striking the defendant's answer and awarding the plaintiff judgment by default. The court at Special Term granted that motion and entered a judgment in favor of the plaintiff and against Wapnick for $33,925, the total amount demanded in the complaint. Following the Appellate Division's affirmance of that disposition, the defendant appealed to this court on constitutional grounds.*fn2

The present suit was originally instituted in July of 1959, when the plaintiff obtained an order for Wapnick's arrest. Shortly after that order had been executed, the defendant served a verified answer, denying allegations of the complaint, and moved at Special Term to vacate the arrest order. In support of that motion, and of a similar motion made the following year, the defendant submitted four affidavits, containing challenges to the sufficiency of the plaintiff's case and generally denying any knowledge of the fraudulent transactions charged against him. These affidavits, plus the denials in the defendant's answer, form the basis for the plaintiff's argument that the defendant had waived his privilege at the examination before trial.

    --> Although the defendant declined to answer, on constitutional grounds, 42 questions addressed to him at that examination, the plaintiff claims that he had waived the privilege by reason of statements which the plaintiff says related to nine of them. As to four of those statements, however, the plaintiff merely points to implied "admissions," that is, admissions resulting from the defendant's failure to deny allegations of the complaint. Such an argument is specious. Certainly, one does not waive his constitutional privilege, his right to remain silent, by simply remaining silent. Stated somewhat differently, the mere failure to deny an allegation in a complaint, or to deny any other assertion, can never serve as a predicate for a claim of waiver.

This leaves five questions, put to the defendant, upon which the plaintiff relies to support his claim. However, comparison of them with the statements in the defendant's papers demonstrates that the defendant had said nothing which could reasonably be deemed to have effected a waiver of his privilege.*fn3

As to the first of these questions -- "Are you in business at the present time?" -- it is apparent that the defendant's statement dealt with a completely different issue, namely, the defendant's reputation, and does not indicate whether or not he was engaged in business at the time the question was asked. Similarly, although the last question (No. 5) related solely to the defendant's actual knowledge of certain payments, the statement quoted was merely the defendant's argument as to possible implications which might have been drawn from the guarantee of title; it casts no light on whether any payments were made or, if they were, whether the defendant was notified of that fact. Thus, there are only three questions -- designated Nos. 2, 3 and 4 -- which may be said to have been touched on by the defendant's earlier statements.

Proceeding to them, it appears that, as to two of those three (Nos. 3 and 4), the plaintiff relies on the defendant's statement in which he generally denies any participation in fraudulent transactions. Unless this denial of wrongdoing is sufficient to constitute a waiver of the privilege, but a single question remains (No. 2) out of the 42 which the defendant refused to answer, concerning which there was an actual and direct admission in the defendant's sworn statements. The fact that the defendant had, in effect, given an answer to this one question -- "Do you know the plaintiff, Mr. Steinbrecher?" -- by stating that he had dealt with him in a completely unrelated transaction, cannot possibly be deemed sufficient to support the claim of waiver of the privilege and entry of a default judgment (of over $33,000). Accordingly, the question whether the dismissal of the answer was justified hinges upon the effect of the defendant's statement -- made in connection with his application to vacate the order of arrest -- that, "if the facts charged by plaintiff are true with respect to the co-defendants herein, I had no knowledge of or connection with the fraudulent acts charged to them." In our view, this general denial of guilt -- made under circumstances completely removed from and independent of the examination before trial -- did not constitute a waiver of the defendant's right to assert his privilege in the latter proceeding.

In determining whether a person, by his previous acts or statements, has waived his privilege against self incrimination, the first important distinction to keep in mind is the difference between the privilege accorded an accused in a criminal case, who need not give any testimonial evidence whatsoever, and the privilege accorded the ordinary witness -- including a party in a civil case -- who may be compelled to testify as to any matter which does not actually tend to incriminate him. In the former case, where the scope of the privilege is the most sweeping, the courts have traditionally been more ready to find that there was a waiver. Thus, a defendant in a criminal prosecution who testifies at his trial may be compelled to answer questions as to all matters relevant to the case. (See, e.g., People v. Johnston, 228 N. Y. 332, 340; see, also, Richardson, Evidence [Prince's 9th ed.], § 533, pp. 543-544.)

On the other hand, an ordinary witness, including a party in a civil suit, does not waive his privilege by the mere act of testifying. The rule, as stated by the Supreme Court, is that, "where the previous disclosure by an ordinary witness is not an actual admission of guilt or incriminating facts, he is not deprived of the privilege of stopping short in his testimony whenever it may fairly tend to incriminate him." (McCarthy v. Arndstein, 262 U.S. 355, 359; see, also, e.g., Rogers v. United States, 340 U.S. 367,373; People ex rel. Taylor v. Forbes, 143 N. Y. 219, 229-231; Matter of Siegel v. Crawford, 292 N. Y. 651, affg. 266 App. Div. 878; Foster v. People, 18 Mich. 266, 274; 8 Wigmore, Evidence [McNaughton's rev. ed., 1961], § 2276, pp. 456-458.)

The differentiation which has thus been drawn between a criminal defendant and a party in a civil suit (or any other witness) stems from the nature of the privilege itself. The civil litigant (or the witness) may not refuse to answer a question unless the answer to it would have an incriminating effect. If he is interrogated about a certain event, and can answer the query in a nonincriminatory manner, he has no choice but to do so. Nevertheless, the answers to other questions, relating to the very same transaction, may still have an incriminating effect and, despite his previous testimony, the privilege must still be accorded the witness. However, if a nonincriminating statement were held to open the door to further inquiry, and thus required the witness to later make incriminating statements, he would have to be accorded the privilege of asserting his right to remain silent and of keeping the door closed at an earlier stage. In other words, if the privilege is deemed waived by a nonincriminatory statement, then, the scope and reach of the privilege would have to be expanded to include the right to refuse to make such a statement. (See 8 Wigmore, Evidence [McNaughton's rev. ed., 1961], p. 457; Note, Waiver of the Privilege Against Self Incrimination, 14 Stan. L. Rev. 811, 816-817, n. 23.)

In order to preserve the rule that a witness must respond to questions if the answers are not incriminating, therefore, the principle has been established that, even where the witness has already given testimony as to a particular transaction, he is still entitled to refuse to answer questions unless it is "perfectly clear and plain * * * that the answer cannot possibly injure him, or tend in any degree to subject him to the peril of prosecution." (People ex rel. Taylor v. Forbes, 143 N. Y. 219, 231, supra.) This rule applies unless the defendant has actually waived -- that is, consciously relinquished -- the right to remain

    --> silent either by an express agreement or by voluntarily making a statement that is actually incriminatory and evidences a willingness to forego his constitutional privilege.

The application of this principle is illustrated by this court's decision in Matter of Siegel v. Crawford (292 N. Y. 651, affg. 266 App. Div. 878, supra), a case very similar to the one now before us. In Siegel, an insurance agent had been sued for making false and fraudulent "comparisons" between insurance policies, an act which subjected him to criminal as well as civil penalties (Insurance Law, § 127, subd. 4). At an examination before trial, the defendant admitted that his employees had dealt with the plaintiff but denied any personal knowledge of the transactions. Later, in the very same examination, he refused to answer questions, relating to the comparisons made for the plaintiff, on constitutional grounds. Unlike the present plaintiff, who, in a similar situation, moved directly to dismiss the answer, the plaintiff in that case sought and obtained a court order directing the defendant to respond. When the latter persisted in his refusal, the court cited him for contempt and the defendant brought an article 78 proceeding in the Appellate Division to review the determination. The Appellate Division annulled the contempt order on the ground that "the Justice had no power to deprive the witness of his privilege" (266 App. Div., at p. 879) and, on appeal, this court affirmed (292 N. Y. 651). The plaintiff in the Siegel case had argued that, since the defendant had previously denied any personal involvement in the transactions but had acknowledged their existence, he was no longer entitled to claim the privilege. This court rejected that argument, and held that, so long as the answer to the question could still have a possible incriminating effect, the defendant could not be compelled to speak.

There is one important exception to the general rule that a witness is free to rely on the privilege unless he has waived it by voluntarily testifying to incriminating facts. Since the sole purpose of the privilege is to shield a witness against the incriminating effects of his testimony, the courts will not permit its use as a weapon to unfairly prejudice an adversary. (See Levine v. Bornstein, 6 N.Y.2d 892; Brown v. United States, 356 U.S. 148, 155-156.) In the Levine case (6 N.Y.2d 892, supra), the privilege was invoked by a plaintiff at an examination before trial in a civil suit, with the effect of depriving the defendant of information necessary to his defense. For this reason, our court upheld an order dismissing the complaint. The considerations which motivated the court in the Levine case, however, have no application where the privilege is asserted by a defendant. (See 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., § 3126.15.)*fn4

The case of Brown v. United States (356 U.S. 148, supra) -- upon which the plaintiff herein relies -- is another example of a situation in which a civil litigant abused the privilege by using it as a means of gaining an unfair advantage over his adversary. In that case, a defendant in a denaturalization proceeding had testified extensively on her own behalf and then sought to use the privilege to cut off the Government's right to cross-examine her. The Supreme Court concluded that it was appropriate to use the contempt power to compel the witness to respond. However, the Supreme Court restated and reaffirmed that, as a general rule, a witness retains his right to invoke the privilege unless his previous testimony contains "'an admission of guilt or [furnishes] clear proof of crime'" (356 U.S., at p. 154). It noted, though, that, when a civil litigant takes the stand in his own behalf, his position was somewhat analogous to a criminal defendant in that he was not forced to testify and is doing so solely as a matter of choice. In such a case, the court noted that "[the] witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry" (356 U.S., at p. 155) and concluded that the defendant "could not take the stand to testify in her own behalf and also claim the right to be free from cross-examination on matters raised by her own testimony on direct examination" (p. 156).

The reasoning underlying the decision in Brown is, quite obviously, completely inapposite to the case before us. This is not a case in which the defendant voluntarily chose to take the stand at a trial and present the jury with a one-sided view of the facts in order to gain an advantage over his adversary. On the contrary, the privilege was exercised at an examination before trial, at which the defendant had no choice but to appear and face questions chosen by his opponent solely for the latter's benefit. Nor is it relevant that, on a previous occasion and for an entirely unrelated purpose, the defendant had made certain statements. It is true that the affidavits executed by the defendant were in support of his own motion but the purpose of that motion was purely defensive -- to vacate an ex parte order previously obtained by the plaintiff. It was the latter who approached the court with an extensive exposition of the defendant's illegal activities and the defendant, in his own papers, was merely denying allegations already made. The essential fact is that at no time did the defendant ever attempt to use the privilege as a device to foreclose examination into facts which he himself had put in issue.

In People v. Cassidly (213 N. Y. 388), the court expressed the view, somewhat similar to that expressed by the Supreme Court in Brown (356 U.S. 148, supra), that a witness, after giving testimony to his own advantage, could not " at the same time and in the same proceeding * * * refuse to answer questions that are to his disadvantage or the disadvantage of his friends" (213 N. Y., at p. 394). The court emphasized, however, that even the accused in a criminal case, against whom the doctrine of waiver has been given its broadest application, may freely testify "'before a coroner's inquest or a grand jury or other preliminary and separate proceeding'" and the resulting testimony would not constitute a "'waiver for the main trial'". (People v. Cassidy, 213 N. Y., at p. 396; see, also, United States v. Miranti, 253 F. 2d 135, 140 [testimony at an early stage of a Grand Jury investigation was not a waiver at a later stage of the same investigation]; People v. Williams, 25 Ill. 2d 562, 565 [testimony given in support of a motion to suppress did not waive privilege on issue of guilt]; 8 Wigmore, Evidence [McNaughton's rev. ed., 1961], § 2276, pp. 470-472, and cases there cited.)

The plaintiff does not, indeed could not, argue that he was prejudiced in any way by the recitals in the defendant's affidavits, despite the subsequent exercise of the privilege at the examination before trial. The affidavits were addressed solely to the court at Special Term on the narrow question of the propriety of the provisional remedy of arrest and that court, in making its determination -- adversely, we might add, to the defendant -- was provided with a full and fair exposition of all of the facts by both sides. Although any information which the defendant revealed would constitute an admission and could be used against him at the trial of the action, he could not, of course, use them on his own behalf. If anything, therefore, the statements made in Wapnick's affidavits inured to the benefit of the plaintiff and there was simply no possibility that the defendant's later exercise of his privilege would result in any unfair advantage to him.

Not only has the plaintiff failed to show any prejudice which resulted from the exercise of the privilege but it is likely that he would have gained a substantial advantage even if the answer had not been stricken. When a defendant fails to present evidence on his own behalf in a civil case -- and, as we have noted, the affidavits executed by Wapnick could not be used by him as evidence -- but chooses instead to assert his constitutional privilege, he places himself at an obvious disadvantage. Moreover, we have only recently held that the courts need not permit a defendant to avoid this difficulty by staying the civil action until a pending criminal prosecution has been terminated. (See Langemyr v. Campbell, 21 N.Y.2d 796; cf. Oleshko v. New York State Liq. Auth., 21 N.Y.2d 778.) The fact that a defendant in a civil suit assumes a substantial risk when he chooses to assert his privilege does not, however, mean that the plaintiff is relieved of his obligation to prove a case before he becomes entitled to a judgment.

In the present case, the plaintiff is asking us to sustain a civil judgment in excess of $33,000 which he has obtained without the necessity of introducing any evidence in support of his claim. The sole reason given is the defendant's broad and general denial of guilt in papers which could not be used as evidence against the plaintiff or prejudice him in any way but which, the plaintiff asserts, deprived the defendant of his fundamental constitutional privilege against self incrimination. Such a result is hardly necessary to protect the plaintiff's legitimate interests and would amount to nothing more than the imposition of a civil forfeiture for the good faith exercise of a constitutional right. (See Gardner v. Broderick, 392 U.S. 273, 279; Spevack v. Klein, 385 U.S. 511, 515; Griffin v. California, 380 U.S. 609, 614.)

We conclude, therefore, that the defendant's answer must be reinstated and the default judgment entered against him vacated. However, since the indictments, which had been pending against the defendant when the plaintiff sought to examine him before trial, have been tried and disposed of and since, by reason of that fact, the defendant would not now be entitled to assert his privilege if asked the questions previously put to him, the plaintiff should be permitted to examine the defendant before trial on the issues raised by the pleadings.

The order appealed from should be reversed, with costs, and the answer of the defendant reinstated.


Order reversed, with costs, and case remitted to Special Term for further proceedings in accordance with the opinion herein.

Breitel, J. (dissenting). This appeal raises an issue of first impression. There is no disagreement among the court that a plaintiff may waive the privilege against self incrimination by bringing an action concerning the privileged matter (Levine v. Bornstein, 7 A.D.2d 995, affd. 6 N.Y.2d 892; 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., § 3126.15). Nor is there any disagreement that, in merely defending an action, the privilege of a defendant need not be waived, and, indeed, is not waived by such defense alone. Thus, it has been held that a defendant need not verify his pleading if self incrimination be entailed (Travelers Ins. Co. v. Mulligan, 231 App. Div. 222; Kellogg v. Match Supply Co., 165 App. Div. 885; 3 Weinstein-Korn-Miller, op. cit., § 3020.10; see, also, CPLR 3020, subd. [a], excepting from verification privileged matter).

The precise question is whether a defendant in a civil action preserves his privilege against self incrimination on an examination before trial in the action, although on pretrial motions made by him he had stated his version of the privileged matter.

According to plaintiff Steinbrecher, during May and June, 1959, defendant Wapnik sold 17 used automobiles to plaintiff. purportedly on behalf of Robert Ezersky. As a result of State and Federal criminal investigations into organized stolen car rings, it turned out that the cars had been stolen and sold to plaintiff as part of a conspiracy to sell stolen cars to reputable automobile dealers. Defendant was indicted in Queens and Bronx Counties as well in the United States Eastern District of New York for his complicity in these transactions. Eventually, he was acquitted in the State courts but convicted in the Federal prosecution.

In July, 1959, almost 10 years ago, plaintiff brought this action against defendant and others, to recover his payments of $33,925 on the ground of fraud. On August 14, 1959 defendant served a verified answer containing general denials. It is settled law that he was not required to do so, notwithstanding section 250 of the then applicable Civil Practice Act (Travelers Ins. Co. v. Mulligan, supra ; Kellogg v. Match Supply Co., supra ; cf. CPLR 3020, subd. [b], par. 1). While arguably this voluntary verification might constitute a waiver of the privilege, it hardly seems fair to so regard it (cf. Meyer v. Mayo, 176 App. Div. 93; Southbridge Finishing Co. v. Golding, 208 Misc. 846, affd. 2 A.D.2d 882). In any event, in light of defendant's subsequent actions, it is not necessary to consider the effect of the voluntary verified answer on the privilege against self incrimination.

One week prior to service of the summons and complaint plaintiff obtained an order of arrest in the action against this defendant. Bond was posted by defendant in order to secure his release. In August, 1959 defendant moved to vacate the order of arrest. In support of his motion, defendant submitted a largely argumentative affidavit in which he disputed the time and circumstance of the onset of their acquaintanceship and the occasion for their meeting. Moreover, by deviously worded denials, the affidavit in effect asserted that the cars had been purchased from Ezersky, that defendant knew no more of the ownership of the cars than did plaintiff, that he was not a member of any car-stealing ring, and that he had not participated in any scheme to defraud plaintiff. Defendant also filed a reply affidavit much the same in form and effect as the first. The motion was denied in October, 1959.

Almost one year later, in June, 1960, on the verge of the anniversary of the arrest bond, defendant made a second motion to vacate the order of arrest. And he again filed an affidavit in support, adding to his other grounds, it is interesting to observe, delay in prosecution of the action. His reply affidavit, filed in support of this second motion, rather than obliquely denying knowledge of the transactions, averred: "I have asserted, and I repeat, that if the facts charged by plaintiff are true with respect to the co-defendants herein, I had no knowledge of or connection with the fraudulent acts charged to them. I acted in perfectly good faith, advancing money in reliance that the transactions were bonafide." This motion was denied in July, 1960.

Prior to this second motion, plaintiff sought to examine defendant before trial. The examination was never taken inasmuch as the defendant's attorney, by letter in December, 1959, advised that his client would claim his privilege against self incrimination. The examination was then adjourned pending conclusion of the criminal proceedings against the defendant. In December, 1960, the Bronx County prosecution having been concluded, plaintiff again requested an examination and defendant again indicated he would claim his privilege because other prosecutions were still pending. Treating this repeated expression of intention as a refusal to submit to an examination before trial, plaintiff moved, on June 15, 1961, to strike the defendant's answer on that ground. Special Term denied the motion finding that defendant "does not refuse to submit to the examination". The court directed the examination to be held on July 11, 1961.

The examination before trial was held on July 13, 1961 at which time defendant refused to answer any questions relating to the transaction and concerning averments set forth in his several affidavits.

On a subsequent motion made by plaintiff, Special Term struck defendant's answer, the court stating that defendant "may not interpose a verified answer, submit affidavits in support of his motion and then refuse to answer questions at the examination before trial." This was on November 14, 1961. Defendant appealed, but with lagging steps. The appeal was perfected December 11, 1963. On April 9, 1964 the Appellate Division unanimously affirmed, without opinion, the order of Special Term. He was always represented by counsel, even during part of his imprisonment from July, 1963 to February, 1966, except in this court (20 A.D.2d 969 [Brief and Record on file in Appellate Division]; see Steinbrecher v. Public Serv. Mut. Ins. Co., 20 N.Y.2d 659, 660).

Not until almost five years later and over seven years since the order was signed at Special Term was the appeal argued in this court. In the meantime, all of the criminal prosecutions have been ended, and plaintiff has not yet been paid. The action is almost 10 years old.

This extended recital was necessary in order to present the flavor and substance of defendant's tactics through which he sought variously to use the privilege or "waive" it, as it suited his purpose, not only to delay the action and avoid examination, but also in making efforts to rid himself of the arrest order and bond requirement hanging over his head. This is not the stuff of a purely defensive posture to which a waiver of the important privilege of self incrimination does not attach. Rather, defendant used the privilege affirmatively to obstruct plaintiff and the prosecution of the action and, on the other hand, to suit his purposes revealed his own version of the transaction, albeit sometimes in guarded and indirect language, to deny plaintiff his provisional remedy. But even the indirect language does not detract from his assertions of fact ultimately made as to the kind of automobile transaction, the real parties involved, and that he was innocent of any culpable knowledge in arranging the sale of the stolen cars.

So far as they have gone, the teachings of the cases are clear. Where a party has testified to a transaction, he may not claim his privilege to prevent disclosure, by cross-examination, of the contrary version (Brown v. United States, 356 U.S. 148). True, in Arndstein v. McCarthy (254 U.S. 71; McCarthy v. Arndstein, 262 U.S. 355) the Supreme Court had held that in the involuntary examination of a bankrupt there was no waiver until a disclosure is made amounting to "an actual admission of guilt or incriminating facts" (262 U.S., p. 359). However, this broad rule requiring inculpation to effect a waiver was expressly limited in the Brown case, to an instance where the witness is compelled to testify (supra, p. 155; see, also, Rogers v. United States, 340 U.S. 367, 373, n. 15). The Brown case arose out of a civil suit for denaturalization brought against petitioner. After being called as an adverse witness and asserting her privilege, petitioner voluntarily testified in her own behalf. Although her testimony "did not amount to 'an admission of guilt or furnish clear proof of crime,' but was, on the contrary, a denial of any activities that might provide a basis for prosecution", the court held that petitioner had waived her right to invoke the privilege on cross-examination concerning "the matters relevantly raised by [her] testimony" (356 U.S., pp. 154, 157).

Consequently, this defendant's flat denial of any "knowledge or connection with the fraudulent acts charged" set forth in his fourth and last affidavit if uttered on direct examination would have barred any subsequent assertion of the privilege (United States v. Brown, supra). As in the Brown case there was no compulsion but rather defendant acted voluntarily in his own behalf and in furtherance of his own interests. The question is then whether the waiver in the affidavits holds true as a waiver in the examination before trial.

Of course, the privilege against self incrimination is not waived in a proceeding or action different from the one in which the testimony is given (People v. Cassidy, 213 N. Y. 388, 394-396). The Cassidy case stated that testimony "'before a coroner's inquest or a grand jury or other preliminary and separate proceeding'" would not serve to waive the privilege "'for the main trial'" (id., p. 396). The "same proceeding" rule is not to be confused with the view that a waiver should be limited to a single continuous examination in which the initial waiver occurred (see 8 Wigmore, Evidence [McNaughton's rev. ed., 1961], § 2276, p. 470). That is another matter indeed, and there is no settled rule. So, too, in a criminal case where the defendant testifies at a pretrial or trial motion to suppress he is not deemed, by statute or otherwise, to waive his privilege. This is so, for otherwise a defendant would be placed in the cruel dilemma of waiving one constitutional right in order to assert another. But to hold that such a rule applies in a civil case as this where a defendant is not forced to choose between constitutional rights would convert the privilege from its intended role as a "humane safeguard against judicially coerced self-disclosure"*fn* into a potent weapon in the hands of a crafty defendant.

This case involves a single action. The affidavits and subsequent claim of privilege occurred in different pretrial procedures in the same action. In such case, the defendant seeks the best of contradictory tactics -- disclosure and privilege. This is indeed a double-edged use, usually denied to a party (cf. Levine v. Bornstein, supra).

    --> Nor is a defendant in such a situation faced with a hopeless dilemma. For a time this defendant actually obtained adjournments of proceedings while the criminal actions were pending, and in a proper case could have sought relief from the court to stay proceedings. Langemyr v. Campbell (21 N.Y.2d 796) and Oleshko v. New York State Liq. Auth. (21 N.Y.2d 778) are not to the contrary. Those cases simply held, that in the one case of an arbitration and in the other of an administrative hearing, there was no abuse of discretion in proceeding with the final hearings. In the Oleshko case the one claiming the privilege had been successfully challenged with inordinate delays in attempting to forestall a ruling on the merits. That is not the problem in this case. Here, a determination of the merits was, of course, forestalled, but, more important, defendant played a hit-and-run game with disclosures and claims of privilege and never asked the court for a straightforward postponement of the examination before trial on the ground that it would embarrass him in the pending criminal actions.

A defendant, or any party, should not be able to use the privilege in a duplicitous way. In another context the Supreme Court said, "[This] Court should not be ignorant as judges of what we know as men" (Watts v. Indiana, 338 U.S. 49, 52). Therefore, defendant's tactics should be viewed as having shaped the result -- a waiver of the privilege in this action. On the other hand, a consistently defensive use of the privilege against self incrimination should never allow of waiver. This applies even to a defendant, who, perforce, takes defensive postures by way of pleadings or denials alone. Otherwise, a defendant would be required to default in an action if he would preserve his privilege. But this does not mean that a defendant, who chooses to litigate aggressively within the pending action, can avoid the choice of disclosure or claim of privilege -- anymore than he can avoid that dilemma upon the trial on the merits. In either event, so long as he is unable to obtain an adjournment on proper grounds, he must make his choice.

Certainly, and finally, it will be small comfort to plaintiff for him to examine defendant before trial about a conspiracy, now some ten years after the event.

Accordingly, I dissent and vote to affirm the order of the Appellate Division.

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