Opinion
No. 7590/10.
2013-01-23
Anthony CANCILLA and Phyllis Cancilla, Plaintiffs, v. Irma VUKOSA and Sonja Vukosa, Defendants.
Matthew R. Kreinces, Esq., Roura & Melamed, New York, for Plaintiff. Robert A. Skoblar, Esq., Hackensack, NJ, for Defendant.
Matthew R. Kreinces, Esq., Roura & Melamed, New York, for Plaintiff. Robert A. Skoblar, Esq., Hackensack, NJ, for Defendant.
DAVID SCHMIDT, J.
By order to show cause filed on July 25, 2012, under motion sequence number two plaintiffs Anthony Cancilla and Phyllis Cancilla (hereinafter “the Cancillas”) have moved for an order of civil contempt against defendants Irma Vukosa and Sonja Vukosa (hereinafter “the Vukosas”) based on their failure to respond to an information subpoena.
The Vukosas have opposed the motion and have cross-moved to vacate the default judgement entered against them.
The Cancillas have opposed the Vukosas' cross-motion.
BACKGROUND
On March 25, 2010, the Cancillas commenced the instant action for damages for personal and derivative injuries by filing a summons and verified complaint with the Kings County Clerk's office. The complaint alleges that on October 23, 2009, Anthony Cancilla was injured due to a defective and dangerous condition in apartment four at a premise located at 280 East 2nd Street, Brooklyn, New York. He contends that the defective condition was due to the Vukosas' negligent operation, management, maintenance and control of the premises. The Vukosas did not appear or answer the complaint.
MOTION PAPERS
The Cancillas' order to show cause consists of their attorney's affirmation, and five exhibits labeled A through E. Exhibit A is a copy of the summons and an incomplete copy of the verified complaint. Exhibit B contains copies of the affidavits of service of the summons and verified complaint upon the Vukosas. Exhibit C contains no documents. Exhibit D contains a copy of the default judgement against the Vukosas in the amount of $178,559.50, signed by the Kings County Clerk and entered on March 14, 2012. Also included are two subpoenas duces tecum and the affidavits of service for the instant order to show cause. Exhibit E contains affidavits of service of the two aforementioned subpoenas.
The Vukosas' cross motion and opposition papers contain an affidavit of Sonja Vukosa and one exhibit labeled exhibit A. Exhibit A appears to be a letter from Mr. Skoblar the attorney for the Vukosas dated June 1, 2012 and addressed to Mr. Kreinces, the Cancillas' attorney.
The Cancillas' affirmation in opposition to the cross motion and reply to the main motion, contained within one submission, consists of ten exhibits labeled A through J. Exhibit A is a copy of the summons and incomplete verified complaint. Exhibit B contains copies of the affidavits of service of the summons and verified complaint upon the Vukosas. Exhibit C is a copy of the motion for a default judgment filed July 28, 2010. Exhibit D is a copy of the default judgement order signed by the Hon. Ellen M. Spodek dated September 27, 2010, which directed an inquest. Exhibit E is a copy of the note of issue and an affirmation of plaintiffs' counsel seeking to put the matter on the trial calender. Exhibit F is a certified copy of the transcript of the inquest conducted by Special Referee Nina Kurtz dated January 18, 2012. Exhibit G is a copy of the judgement entered by the Kings County Clerk. Exhibit H are copies of the subpoenas duces tecum addressed to the Vukosas. Exhibit I consists of the affidavits of service of the subpoenas. Exhibit J contains correspondence purportedly sent to the Vukosas notifying them that an inquest was scheduled for March 2, 2011.
The Cancillas also submitted a “further affirmation in opposition and reply” which consists of their attorney's affirmation and two exhibits labeled A and B. Exhibit A is a print out from the New York State Unified Court System's web page. Exhibit B is another print out from the New York State Unified Court System's web page reflecting the status of a matter bearing index number 35920/06.
The Vukosas also submitted an affidavit of Sonja Vukosa in further support of their cross-motion. The caption of the affidavit reflects a third party action bearing index number 75721/12 in which the Vukosas are the third party plaintiffs and Public Service Mutual Insurance Company is the third party defendant.
LAW AND APPLICATION
The Court will address the Vukosas' cross-motion to vacate their default before the Cancillas' motion for an order of contempt. Pursuant to CPLR 308, service of process may be made “by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode” only where the alternate methods of professional service provided for in CPLR 308(1) or (2) “cannot be made with due diligence” (Serraro v. Staropoli, 94 AD3d 1083 [2nd Dept 2012] ). The requirement of due diligence must be strictly observed given the reduced likelihood that a summons served pursuant to that section will be received (Krisilas v. Mount Sinai Hosp., 63 AD3d 887 [2nd Dept 2009] ). What constitutes due diligence is determined on a case-by-case basis, focusing not on the quantity of the attempts at personal delivery but on their quality (McSorley v. Spear, 50 AD3d 652 [2nd Dept 2008] ).
Here the process server attempted to personally deliver a summons and complaint to each of the Vukosas at their shared residence on three consecutive weekdays in 2010; at March 29th at 3:38 p.m., March 30th at 7:39 p.m. and March 31st 2010 at 7:45 a.m.. After the three attempts proved unsuccessful, the process server affixed a copy of each summons and complaint to the front door of the defendants' shared home and mailed a copy to that same address the following day.
“For the purpose of satisfying the due diligence' requirement of CPLR 308(4), it must be shown that the process server made genuine inquiries about the defendant's whereabouts and place of employment” (Serraro v. Staropoli, 94 AD3d 1083 [2nd Dept 2012] ). Here the process server did not make any inquiries about the defendants' work schedules or their respective business addresses. He simply reviewed the residential address on each summons and complaint and made three attempts at personal service at that address. Each of the process server's attempts at personal service was made on weekdays during hours when it reasonably could have been expected that the defendants were either working or in transit to or from work. Under these circumstances, the plaintiffs failed to establish that they exercised “due diligence” in attempting to effectuate service pursuant to CPLR 308(1) or (2) before using the “nail and mail” method pursuant to CPLR 308(4) ( Id ).
Accordingly, the defendants' cross-motion to vacate the default judgment upon their failure to appear or answer the complaint is granted. It is noted that the Vukosas did not seek an order dismissing the complaint for lack of personal jurisdiction. Rather, they sought an order permitting them to answer the complaint. Therefore, the default judgment is vacated and the Vukosas have thirty days to serve their respective answer to the complaint.
As to the motion for contempt Judiciary Law 753(A) provides that a court has the power to punish, by fine or imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a remedy of a party to a civil action or civil proceedings, pending the court may be defeated, impaired, impeded, or prejudiced.
CPLR 5251 provides that the “refusal or willful neglect of any person to obey a subpoena or restraining notice issued, or order granted ...” is punishable as contempt of court. Failure to comply with the duly issued subpoena constitutes contempt of court (In re Estate of Lupoli, 275 A.D.2d 44, 50 [2nd Dept 2000] ). To succeed on a motion to punish for civil contempt, the moving party must show that the alleged contemnor violated a clear and unequivocal court order and that the violation prejudiced a right of a party to the litigation (Denaro v. Rosalia, 50 AD3d 727 [2nd Dept 2008] citing, McCain v. Dinkins, 84 N.Y.2d 216, 225–226 [1994];Judiciary Law § 753 [A] ). To satisfy the prejudice element, it is sufficient to allege and prove that the contemnor's actions were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party (Astrada v. Archer, 71 AD3d 803 [2nd Dept 2010] ). The moving party must establish the contempt by clear and convincing evidence (Denaro v. Rosalia, 50 AD3d 727 [2nd Dept 2008] ).
Civil contempt has as its aim the vindication of a private party to litigation and any sanction imposed upon the contemnor is designed to compensate the injured private party for the loss of or interference with the benefits of the mandate (McCain v. Dinkins, 84 N.Y.2d 216–226 [1994] citing Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 583 [1983] ).
Given the purpose of civil contempt, and in light of the vacatur of the default judgment against the defendants, plaintiff's right to any discovery sought pursuant to the information subpoena no longer exists and the denial of the contempt application based thereon is proper.
In conclusion, the Vukosas cross-motion to vacate the default judgment against them is granted and Irma and Sonja Vukosa have thirty days to answer the complaint.
The Cancilas motion for an order of contempt is denied.
The foregoing constitutes the decision and order of the court.