Opinion
E2019002025
07-01-2020
LC Apartments LLC, Plaintiff, v. Anthony Trovato and SAMANTHA TROVATO, Defendant(s).
Plaintiff LC Apartments LLC (" LC") seeks money not paid under the terms of a "lease" (the subject or nature of the lease is not stated in the Complaint), and, having applied to the Monroe County Clerk for and been granted a judgment for $7072.95 against defaulting defendants Anthony Trovato and Samantha Trovato, now moves pursuant to CPLR § 2308(a) for an Order "punishing the defendant Samantha Trovato for failing to respond to the information subpoena;" fining her $250.00; and requesting a warrant for the arrest of defendant Samantha Trovato and "confining (her) to jail if she persists in disobeying the subpoena." Plaintiff also requests an Order compelling defendant Anthony Trovato to respond to an information subpoena and questionnaire.
The motion is denied in its entirety, and the judgment is vacated in its entirety.
In reviewing the entire filing in this matter in preparation for deciding the motion to issue a warrant, the Court concludes that the Clerk of Monroe County wrongfully granted the default judgment in the first place.
Pursuant to CPLR 3215(a), the Clerk is authorized to enter judgment "upon submission of the requisite proof." CPLR 3215(f) states that proof shall consist of "proof of the facts constituting the claim." Here, the verified complaint alleges the existence of a "lease agreement," and a breach, and interest calculated from a certain date.
There being no mention of the term of the lease, the amount agreed to be paid under the lease agreement, the calculation of the damages, the location of the leasehold and whether it is for real or personal property, the "proof" presented is inadequate to constitute "proof of the facts constituting the claim."
Accordingly, the judgment issued by the Clerk of the Court is vacated and the motion is denied in its entirety.
Even if the relief requested were deemed adequate "proof of the facts constituting the claim," the motion would be denied, at least in part.
The Court would deny that part of the Motion requesting a fine of $250.00 (the statute only allows for a $150.00 fine) and would instead impose a $50.00 fine.
The court would also deny that part of the motion that seeks a warrant of arrest and confinement in jail of Samantha Trovato.
Whether to issue a warrant of arrest for a judgment debtor based on an alleged failure to comply with a post-judgment judicial subpoena has been held to be a matter of the court's discretion (see, Cadlerock Joint Venture, L.P. v. Forde, 152 AD3d 483, 54 NYS3d 878 [2d Dep't 2017]). The statute under which the plaintiff brought its motion, CPLR § 2308(a), by its terms makes issuance of the warrant discretionary ("A court may issue a warrant").
The Fourth Department has held, in applying the related statute of CPLR § 5251 (entitled "Disobedience of a Subpoena"), that it is within the court's discretion whether to hold a defendant in contempt for failure to comply with a judicial subpoena (see Dickson v Ferullo, 96 AD2d 745, 465 NYS2d 328, 328 [4th Dept 1983]; see also NY Civ Prac, 6 Weinstein-Korn-Miller § 5251.07). There, the lower court gave no reason and neither did the Appellate Division for their unwillingness to find a judgment-debtor in contempt and issue a warrant.
Here the court would decline to issue a warrant, if for no other reason that confinement in a jail, in light of the present health crisis, is dangerous. However, other good reasons exist.
Body execution as a tool for the enforcement of money judgments was abolished by the CPLR :" (Siegel and Connors, New York Practice 6th Ed. § 513 [2018]).
Body execution after judgment is allowed when there exists some "direct affront to the dignity of the court" (Miceli v Parisi, 44 Misc 2d 712, 716, 255 NYS2d 377, 380 Ct 1964 ), such as where, presumably, "the defendant is "keeping (herself) concealed" (CPLR § 5250). Thus Siegel calls the warrant of arrest authorized by CPLR § 5250 the "narrowly tailored cousin" of body execution.
The court's dignity (let alone its authority) might also be offended where a judicial subpoena has been issued and ignored, thus, CPLR 2308(a) also allows for a warrant to be issued and the debtor jailed in those situations.
However, the Court is not so thin-skinned as to think its authority is punctured by the failure of a defendant to respond to an information subpoena, especially under the present conditions of economic hardship brought on by the COVID -19 virus, economic trade wars and the state of generally acknowledged vast disparities in wealth.
Moreover, in this very electronically connected world, where creditors and lenders have immediate access to literally the entire financial history and circumstances of any person, it can be safely assumed that plaintiff-creditors have the means to find assets and enforce a judgment "by less spectacular and less drastic means" (Miceli v Parisi, i.d.) than a warrant of arrest and a stay in the Monroe County Jail. The constitutionality of the warrant and confinement provisions of CPLR § 5250 and CPLR § 2308(a) has not been questioned in any case law found (although Professor David Siegel says "arguments about constitutionality can be made [emphasis added]") (Siegel and Conners, i.d.) but again as Siegel points out, "it (meaning CPLR § 5250) is too rarely used to generate any case law" (i.d.) ( but see A. Dev. Co. Ltd. v Jones, 99 AD2d 238, 242, 472 NYS2d 363, 366 [1st Dept 1984], citing Vail v. Quinlan, 406 F Supp 951[SDNY 1976]; rev on other grounds Juidice v. Vail, 430 US 327, 97 S Ct 1211, 51 L Ed 2d 376 [1977]). Counsel for the defendant points out in an email to the Court that he has filed "innumerable motions for contempt identical to this one," so that apparently, while the contempt finding is not uncommon, actually arresting a judgment-debtor and hauling that person to the jail is not common. He goes on to say:
"The sheriff does not actually arrest the Defendant. What happens is the sheriff contacts the Defendant and tells her that she needs to make an appointment to come to their office and complete the questionnaire. Once they contact her, they will call me and tell me when to appear. She then completes the questionnaire in my presence, and the matter is resolved. All of this takes place in the conference room of the civil division."
While the Court is reassured to know the issue is handled routinely in a matter that does not infringe too much upon the personal liberty of the judgment-debtor, the court is concerned that a person's liberty interest is implicated regardless of what the practice is, if only, because the practice can change (or vary from judge to judge), or circumstances make it impossible for the judgment-debtor to comply with the order to fill out the questionnaire.
Further, the court would deny the motion on two additional grounds: one, that the second notice of motion, the one that requests a warrant of arrest, was never served on the defendant Samantha Trovato, and two, that there never a finding that the debtor Samantha Trovato knowingly and willfully disobeyed this Court's mandate (see Judiciary Law § 753). Both the failure of the notice, and a finding of contempt without a hearing would violate her due process rights, i.e., the right to not be deprived of her liberty without notice of a hearing and a hearing.
The procedural facts are as follows: having entered judgment against both defendants in May 2019 (upon application to the County Clerk), the plaintiff then moved in August 2019 for an Order "Compelling the Debtor to respond to the information subpoena and questionnaire" (the Notice of Motion does not specify which debtor -defendant is being compelled).
Debtor-defendant Samantha Trovato was served and failed to appear on the return date. Plaintiff through counsel submitted a "Proposed Order," which the Court signed. This Order had a paragraph containing the following language:
"WHEREAS the conduct of the Defendant-Judgment Debtor Samantha Trovato was calculated to, and did actually defeat, impair, impede and prejudice the rights and remedies of the Plaintiff-Judgment Creditor in that the Plaintiff-Judgment Creditor has been unable to obtain information on matters relevant to the satisfaction of the judgment as authorized by law "
In no way could the Court have made a finding that the refusal of Samantha Trovato to appear was "calculated" to defeat the rights of the Plaintiff. In other words, the intent of the debtor-defendant (which later becomes the basis for the plaintiff's request for a finding of contempt) cannot be the subject of a finding unless there has been a hearing. That is simply fundamental due process (see Vail v. Quinlan, 406 F Supp 951[SDNY 1976]; rev on other grounds Juidice v. Vail, 430 US 327, 97 S Ct 1211, 51 L Ed 2d 376 [1977]).
The plaintiff then moved on March 4, 2020 for an Order requesting that Samantha Trovato be arrested and confined. The debtor-defendant never appeared. However, the NYS ECF electronic filing system has no record that the motion was ever served. The motion was initially granted and an Order signed finding Samantha Trovato in contempt (but denying the warrant application), before it was realized that service had not been made.
Accordingly, the motion of March 4, 2020 would be denied for failure to provide the debtor-defendant Samantha Trovato notice of the proceeding, and failure to provide for a hearing upon the application for a finding of contempt.
The better practice would be the one followed by the Rochester City Court, where an Order To Show Cause is issued directing the debtor to appear in court, and then court has the opportunity to explain, in person and in non-threatening terms, what the debtor needs to do to comply with the subpoena. Unfortunately, an Order To Show Cause, which was the exclusive means by which a contempt request could be made, was amended in 1977 to allow for a motion as well (Siegel and Connors, New York Practice 6th Ed. § 484, fn 3 [2018]).
In any event, the Motion is DENIED in its entirety.
The judgment is VACATED.
SO ORDERED
Rochester, New York July 1, 2020 __________ Hon. Christopher S. Ciaccio Acting Supreme Court Justice
Addendum: Shortly after signing this Decision and Order, the Court received an email from Plaintiff's counsel, in which he said he had neglected to file the Affidavit of Service and did so moments ago.
The late filing, more than three months after the return date of the Notice of Motion, renders the document a nullity, since it was not presented for the court upon its review initially of the "Proposed" Order following the defendants' failure to respond to the motion. Pursuant to the Uniform Rules for the Trial Courts, 22 NYCRR 202.5-bb, all documents reviewed or considered by the court must be filed electronically.
Even if the affidavit had been filed timely, the result would still be the same, that no warrant of arrest or finding of contempt can be issued, because the service was accomplished by a first-class mailing with no proof that it was sent to a current address let alone was received by the defendants. Thus, the court cannot be certain (to any degree) that the defendants received notice of the application.
Although Judiciary Law § 761 allows that in a civil contempt proceeding service "shall be made upon the accused," a phrase which has been interpreted to allow service by ordinary mailing (see Siegel and Connors, New York Practice 6th Ed. § 484 [2018], citing to New York Higher Ed. Assistance Corp. v. Cooper, 65 AD2d 410 (2nd Dept 1978), that interpretation is rejected. Service by mailing only without leave of the court in a proceeding to find a defendant in contempt for failure to respond to an information subpoena is an unconstitutional deprivation of due process.
The terms in plaintiff's proposed Order call for a warrant and jail, i.e, incarceration. Jail is jail, and the devastation wrought by a brief stay in even a local jail is well-documented and formed the basis for review and passage of New York's bail reform (see e.g., Michelle Alexander, The New Jim Crow (2010); see further Ta-Nahisi Coates, The Black Family in the Age of Mass Incarceration (Atlantic 2015). The rarity of an actual jail stay does not render the procedure more constitutional.