The opinion of the court was delivered by: Denis R. Hurley Senior District Judge
x Appearances: Robert J. Zysk, Esq.
Attorney for Plaintiffs 629 Route 112, Suite #2 Patchogue, New York 11772 John Wayne Smith Defendant Pro Se 15759 State Highway #53 Tempo, Texas 76501 HURLEY, Senior District Judge:
Plaintiffs Robert J. Zysk and Irene Zysk ("Plaintiffs" or "Zysks") commenced this action asserting claims of breach of contract, diversion of lien law trust assets, fraud, violation of N.Y. General Business Law §§ 349 and 770 et seq., intentional infliction of emotional distress, and prima facie tort. Presently before the Court is plaintiffs' unopposed motion (1) pursuant to Fed.
R. Civ. P. 37(a) and (b) for contempt, and (2) to "confirm the Parties' Choice of Law in the subject contract." For the reasons set forth below the motion is denied.
This action arises out of a contract (the "Contract") entered into between the Zysks and Defendant John Wayne Smith ("Smith" or "Defendant") concerning the construction of a single family dwelling by Smith upon land owned by the Zysks in Bennington, Vermont. According to the allegations in the complaint, Defendants paid Smith $97,400.00 but he "failed and refused to perform the contract all the while making further false and fraudulent representations to the Plaintiff that he was proceeding with construction." (Compl. ¶¶ 20-21.)
Relevant for present purposes is the following contractual provision:
LAW GOVERNING: The provisions of this contract shall be governed by the laws of the State of New York, except where the Laws of the State of Vermont are specified in this contract, only and any dispute, if brought to Court, must be brought in a Court of the State of New York located in the County of Suffolk, State of New York. [*fn1] Contract ¶21.*fn2
I. The Motion for Contempt In support of their motion for contempt, Plaintiffs put forth the following "facts"
The said defendant JOHN WAYNE SMITH has, for seven (7) years, wilfully failed to comply with the Order to account, of this Honorable Court, made from the bench on October 16th 2003 . . . directing and Order[ing] said defendant to ACCOUNT and supply an accounting to this Court and to Plaintiff, for the Trust Fund monies which were paid to defendant SMITH, by plaintiffs in connection with his written engagement to construct a single family house/dwelling for the plaintiffs, and
. . . Defendant, JOHN WAYNE SMITH has failed to provide any discovery required by FRCP Rule 26(a), to the plaintiffs, for a period exceeding seven (7) years, during this litigation. . . . the Plaintiffs, in good faith, have conferred with defendant, and made known to the Magistrate Judge, at each and every conference and appearance in this action over the last seven
(7) years, of defendant John Wayne Smith's failure to provide any discovery and his failure to comply with this Court's Order to Account dated October 16, 2003, in an effort to obtain ...