Opinion
April 3, 2000.
Halpern, Halpern, Axelrod, Kirschenbaum Phillips, P. C., Mineola (Steven L. Rosenthal and Elliot Phillips of counsel), for appellant.
Goldberg Cohen, Brooklyn, and Merrill J. Clark, New York City, for respondent.
PRESENT: ARONIN, J.P., CHETTA and PATTERSON, JJ.
MEMORANDUM
Order unanimously modified by providing that upon reargument defendant's motion to punish plaintiff and its attorneys for contempt is denied and, as so modified, affirmed without costs.
After defendant defaulted and judgment was entered against it in the sum of $5,133.99, plaintiff served an information subpoena with restraining notice upon Chase Manhattan Bank where defendant maintained an account having a balance of $697.09. Thereafter, defendant moved to vacate the judgment. The court granted the motion on condition that it serve and file an answer within 35 days of the date of the order entered on May 5, 1998. Defendant timely served and filed an answer. After plaintiff failed to comply with repeated written requests by defendant's attorney to lift the restraint on the account, defendant moved to hold plaintiff and its attorneys in contempt. The court below granted the motion and held plaintiff and its attorneys jointly and severally liable for $10,000 in contempt and $1,000 in attorney's fees. Upon reargument, the court below adhered to its prior decision holding plaintiff and its attorneys in contempt on the ground that counsel had a duty to act when served with numerous letters from defendant regarding the restraint on defendant's bank account.
Contrary to the opinion of the court below, vacatur of the judgment automatically cancelled the restraining notice. (CPLR 5222 (b)). Thus, plaintiff and its attorneys had no duty to act to remove the restraint. Additionally, there was no basis for the court below to award defendant attorney's fees.