Opinion
No. 58304.
08-12-2016
Paul J. BRAUNER, Plaintiff, v. DONMIK GALLERY PAINTING, INC. and Michael Lemery, Defendants.
Donald J. Hillmann, Esq. of counsel, Couch White, LLP, Albany, for Plaintiff. Gregory V. Canale, Esq., Queensbury, for Defendants.
Donald J. Hillmann, Esq. of counsel, Couch White, LLP, Albany, for Plaintiff.
Gregory V. Canale, Esq., Queensbury, for Defendants.
ROBERT J. MULLER, J.
On August 26, 2013, this Court awarded a Judgment in the amount of $28,209.43 in favor of plaintiff and against defendant Michael Lemery (hereinafter defendant) and his business, defendant Donmik Gallery Painting, Inc. Plaintiff then served an information subpoena on defendant on September 17, 2013. Defendant failed to complete and return the information subpoena, as the result of which plaintiff moved for an Order of contempt. This motion was granted by Order dated December 26, 2013 (hereinafter the Order) and subsequently entered on January 10, 2014. As punishment for the contempt the Order directed defendant to pay a fine "in the sum of $250.00 plus an amount equal to the costs and attorneys' fees incurred by [p]laintiff [relative to the motion]. ...." It appeared that plaintiff failed to properly serve the Order and Judgment altogether, thus raising a question as to whether defendant was even aware of the $2,010.32 awarded and this Court found that plaintiff had failed to show "non-compliance and default on the part of [d]efendant," as required under the Order. Plaintiff's motion for a Warrant of Commitment was denied because (1) plaintiff served the December 26, 2013 Contempt Order upon Donald M. Matusik, Esq.—former counsel for defendant—rather than serving it directly "upon [d]efendant, by U.S. mail at ... 1311 Ridge Road, Queensbury, New York 12804, as directed by the Court; and (2) plaintiff failed to provide the Court with proof of service of the February 19, 2014 Order and Judgment awarding attorneys' fees upon defendant. Plaintiff now moves for leave to reargue and leave to renew this prior motion pursuant to CPLR § 2221(e).
"As a general rule, renewal is appropriate where the moving party presents additional material facts that existed at the time of the prior motion but were not then known to the party seeking leave to renew, and, therefore, not made known to the court' " (Matter of Bevona [Superior Maintenance Co.], 204 A.D.2d 136, 138 [1994], quoting Foley v. Roche, 68 A.D.2d 558, 568 [1979] ). "However, where the additional facts presented relate to an issue which had not previously been raised by the parties but, rather, had been raised sua sponte by the court in its [initial determination,] it [is] error for the court not to consider these additional facts" (Matter of Bevona [Superior Maintenance Co.], 204 A.D.2d 136, 138 [1994], quoting Esa v. New York Prop. Ins. Underwriting Assn., 89 A.D.2d 865, 866 [1982] ; cf. La Freniere v. Capital Dist. Transp. Auth., 105 A.D.2d 517, 518 [1984] ).
Here, insofar as the Contempt Order is concerned, plaintiff contends that "Attorney Matusik accepted service on behalf of his client" and, further, that "[s]ubsequent discussions with Attorney Matusik and his successor confirmed that [d]efendant was on notice of the Contempt Order." Additionally, in an effort "to correct any potential issues ... with service," plaintiff served defendant with a copy of the Contempt Order with notice of entry thereon via U.S. mail at 1311 Ridge Road, Queensbury, New York 12804 on July 13, 2015.
Insofar as the Order and Judgment awarding attorneys' fees is concerned, plaintiff contends that defendant was in fact served with the Order and Judgment with notice of entry thereon on March 17, 2014. According to counsel for plaintiff, "[a]n affidavit of [s]ervice attesting to this fact was completed and placed in [p]laintiff's file in [her] office." Apparently a copy of this affidavit of service was not submitted in support of the prior motion because "[d]efendant's awareness of the [Order and Judgment was] not controverted." With that said, a copy has now been submitted in support of the instant motion.
These additional facts offered relative to both the Contempt Order and the Order and Judgment awarding attorneys' fees serve to "redress the omission[s] perceived by [this C]ourt in its initial determination" (Matter of Bevona [Superior Maintenance Co.], 204 A.D.2d at 138 ) Plaintiff is granted leave to renew his motion for a Warrant of Commitment.
Upon this renewal, plaintiff's motion for a Warrant of Commitment is granted. In opposition to the motion for leave to renew, counsel for defendant has submitted an affirmation stating that "[d]efendant has ... submitted another [i]nformation [s]ubpoena, which is complete and duly executed." With that said, however, defendant has not provided the Court with a copy of this information subpoena. Counsel for defendant further contends that defendant is unable to pay the $2,010.32 in attorneys' fees awarded in the Order and Judgment. Again, however, defendant has failed to submit any proof in support of this contention. Notably, defendant has not indicated that he is unable to pay the $250.00 fine imposed in the Contempt Order, which amount also remains unpaid.
At oral argument counsel for defendant did not produce a copy of the completed information subpoena provided to plaintiff and a hearing is scheduled for defendant's testimony on September 1, 2016 at 11:00 a.m. at the Warren County Courthouse, 1340 State Route 9, Lake George, N.Y. concerning the issue of whether defendant is able to pay the amounts imposed by the Court. Additionally, if plaintiff still disputes the responsiveness to the informational subpoena the hearing will address this issue as well.
Therefore, having considered the Affirmation of Michelle K. Piasecki, Esq. with Exhibits "A" through "H" attached thereto, dated August 24, 2015, submitted in support of the motion, the Memorandum of Law of Michelle K. Piasecki, Esq. dated August 24, 2015, submitted in support of the motion, the Affirmation in Opposition of Gregory V. Canale, Esq. dated April 5, 2016, submitted in opposition to the motion and oral argument having been heard on August 4, 2016 with Donald J. Hillmann, Esq. appearing in support of the motion and Gregory V. Canale, Esq. appearing in opposition thereto, it is hereby
ORDERED that, pursuant to CPLR § 2221(e), plaintiff's motion for renewal and reargument is GRANTED; and it is further
ORDERED that defendant shall appear and offer testimony concerning the issue of whether defendant is able to pay the amounts imposed by the Court and, if deemed necessary, the degree of responsiveness to the informational subpoena shall be addressed as well and it is further
ORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated August 24, 2015 and the submissions enumerated above. Counsel for plaintiff is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513.