Opinion
105885/09.
Decided April 12, 2011.
For Plaintiff ESSA REALTY CORP Attorney Firm Name: SILVERSMITH VERAJA LLP W New York, New York, NY.
For Defendant J. THOMAS REALTY CORP, MOUND COTTON WOLLAN GREENGRASS, Astoria, NY, One Battery Park Plaza, New York, NY.
In a case involving two old, adjacent buildings on Mulberry Street in Manhattan, both of which are allegedly in need of repair, defendant J. Thomas Realty Corp. moves, pursuant to CPLR 3212, for summary judgment dismissing all claims against it and for sanctions (Motion Seq. No. 009). Separately, defendant moves, pursuant to CPLR 6315, for a judgment in the amount $10,890, as well as a hearing to ascertain the amount of attorney's fees to which it is entitled for work undertaken to vacate an injunction (Motion Seq. No. 010). Defendant also moves, pursuant to CPLR 2221 and CPLR 5015, to reargue and vacate portions this court's order dated August 31, 2010 (Motion Seq. No. 011). Finally, defendant moves, pursuant to CPLR 2308, for an order which (1) holds non-party Alfra LLC (Alfra) in contempt for disobedience of a judicial subpoena; (2) directs Alfra to pay defendant the maximum statutory penalty; (3) directs Alfra to pay defendant's costs and attorney fees that it sustained as a result of its failure to comply with the subpoena; and (4) directs Alfra to testify at an examination before trial (Motion Seq. No. 12). Motion Seq. Nos. 009, 010, 011, 012 are consolidated for disposition.
BACKGROUND
Plaintiff is the owner of a building located at 115 Mulberry Street (115 Mulberry). Sometime in 2008, after plaintiff's tenants complained about water damage in their units, plaintiff's managing agent observed cracks in the facade of 115 Mulberry. Plaintiff subsequently hired Xianzhang Chen (Chen), a structural engineer, who examined the building on several occasions (Chen Affidavit, ¶ 2). Chen, in an affidavit, concludes that the damage to plaintiff's building was caused by its neighbor to the south for over 100 years, 113 Mulberry Street (113 Mulberry), which is owned by defendant:
The north wall of Defendant's building, 113 Mulberry Street, is off plumb and leans on Plaintiff's building, 115 Mulberry Street, at various points, which has caused the brick facade of Plaintiff's building to crack, particularly above the fourth floor windows. The development of these cracks has allowed water to infiltrate into the brick facade and space behind the facade which, as the water froze in the winter months, caused more damage, including the expansion of the steel lintels, wall balding, and damage to the walls and ceiling of the commercial space on the first floor of the building
(Chen Affidavit, ¶ 3).
Chen also concludes that the damage would be greater if it were not for the stabilizing effect of the building to its north, 117 Mulberry Street, and that damage to 113 Mulberry, including a vertical crack in its facade, must be fixed before plaintiff can undertake repairs on 115 Mulberry ( id., ¶¶ 6, 8, 10, 15). According to Chen, the damage which 113 Mulberry has caused to 115 Mulberry is "progressive and continuing" (¶ 18).
In contrast to Chen's opinion that damage to 115 Mulberry's facade was caused by an encroachment of 113 Mulberry, defendant's structural engineer, Charles Pisano (Pisano), opines that "the problems that have beset the facade of that building [115 Mulberry] are the result of long-term corrosion that caused the steel lintels that support brick masonry over window openings to expand, thereby causing the cracking and movement of the masonry" (Pisano Affidavit, ¶ 38).
Plaintiff's first cause of action seeks a judgment from the court declaring that 113 Mulberry is leaning against, and causing damage to, 115 Mulberry, while its second and third causes of action allege that defendant is liable under nuisance and trespass, respectively, and seeks an injunction requiring defendant to make all repairs to 113 Mulberry necessary to ensure that it no longer leans against 115 Mulberry. Plaintiff's nominal fourth cause of action does not proffer a new theory of liability, but instead seeks monetary damages on its trespass and nuisance claims.
While defendant argues that plaintiff's application for monetary damages should be denied, as monetary damage is not a cause of action unto itself, the court, applying a "substance over form analysis" reads the fourth footnote 1 cont'd. cause of action in conjunction with the second and third ( see generally Deutsch v Grunwald ,63 AD3d 872 , 875 [2d Dept 2009] [internal quotation marks and citation omitted]).
DISCUSSION
Defendant's Motion for Summary Judgment
"Summary judgment must be granted if the proponent makes a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact,' and the opponent fails to rebut that showing" ( Brandy B. v Eden Cent. School Dist. , 15 NY3d 297 , 302, quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324). However, if the moving party fails to make a prima facie showing, the court must deny the motion, " regardless of the sufficiency of the opposing papers'" ( Smalls v AJI Indus., Inc., 10 NY3d 733, 735, quoting Alvarez, 68 NY2d at 324).
Defendant argues that it is entitled to summary judgment dismissing the complaint because plaintiff's claims are time-barred by the statute of limitations. Substantively, defendant argues that plaintiff is not entitled to recovery under any of its claims. Finally, defendant argues that it is entitled to costs and sanctions.
A. Statute of Limitations
Under CPLR 214 (4), plaintiff's claims of trespass and nuisance are each subject to a three year statute of limitations, as both theories represent an attempt to "recover damages for an injury to property," and CPLR 214-c does not apply. However, trespass and nuisance are subject to the "continuous wrong doctrine" ( Covington v Walker , 3 NY3d 287 , 292; see also Jensen v General Elec. Co., 82 NY2d 77, 85), under which "[a]n encroaching structure is a continuing [wrong] which gives rise to successive causes of action," ( 509 Sixth Ave. Corp. v New York City Transit Authority, 15 NY2d 48, 52). "Thus, for purposes of statute of limitations, suits will only be time barred by the expiration of such time as would create an easement by prescription or change of title by operation of law" ( Bloomingdales, Inc. v New York City Tr. Auth. , 13 NY3d 61 , 66 [citation omitted]).
Defendant contends that 113 Mulberry is not encroaching on 115 Mulberry, submitting the affidavit of its land surveyor, Alphonse Pesce, Jr. (Pesce), who opines that "no part of the building located at 113 Mulberry Street is extending out over its property line onto 115 Mulberry's property" (Pesce Affidavit, ¶ 6). Nevertheless, defendant argues that if 113 Mulberry were encroaching, then defendant would be entitled to a prescriptive easement.
Plaintiff argues that defendant is not entitled to a prescriptive easement, as the encroachment has been progressive. Plaintiff submits the affidavit of land surveyor Lawrence Haynes (Haynes), who states that a field survey, performed on June 2, 2010, demonstrated that "while neither building encroaches over the property line at the first floor, 113 Mulberry Street encroaches up to two and one-half inches over the property of 115 Mulberry at the roof line of 113 Mulberry Street" (Haynes Affidavit, ¶ 7). Haynes also notes that "[t]here was an encroachment existing at the time of the 1927 survey . . . [a]t that time, the encroachment was not more than one inch" ( id.).Plaintiff also argues that the encroachment has not been open or notorious. Plaintiff's managing agent, Lance Steinberg, testified at his deposition that he first noticed that the buildings were touching when he accompanied plaintiff's structural engineer, Chen, during Chen's inspection of the building, and that the encroachment is "impossible to see unless you look on the roof for it" (Steinberg Deposition, at 51).
In order to succeed on a prescriptive easement claim, the party asserting it has the burden to demonstrate "that the subject property was used openly, notoriously, and continuously for the statutory period . . ." ( Rivermere Apts. v Stoneleigh Parkway, 275 AD2d 701, 702 [2d Dept 2000] [internal citation omitted]). This showing must be made through "clear and convincing evidence" ( Amalgamated Dwellings, Inc. v Hillman Hous. Corp. , 33 AD3d 364 , 364 [1st Dept 2006] [internal citation omitted]). If the party asserting the easement makes such a showing, then "a presumption arises that the use was adverse and the burden shifts to the owner of the property to rebut the presumption by showing that the use was permissive" ( Rivermere Apts., 275 AD2d at 702).
Here, defendant has failed to create a presumption that it is entitled to a prescriptive easement. The affidavits of Chen and Haynes indicate that the encroachment was progressive, and has enlarged during the prescriptive period. Each enlargement would restart the statutory period in which plaintiff is entitled to bring an action to recover property from defendant ( see Sova v Glasier, 192 AD2d 1069, 1071 [4th Dept 1993]). However, any monetary damages should be limited to the extent that they were sustained during the three years preceding commencement of the action ( id. at 1070).
Defendant submits historical photographs of 115 Mulberry which, it contends, shows that damage to the buildings facade has existed for decades.
Alternatively, defendant contends that plaintiff's trespass and nuisance claims are time barred by RPAPL § 611, which provides, in relevant part, that an action cannot be maintained
[w]here the real property consists of a strip of land not exceeding six inches in width upon which there stands the exterior wall of a building erected partly upon said strip and partly upon the adjoining lot, and a building has been erected upon land of the plaintiff abutting on the said wall, unless said action be commenced within one year after the completion of the erection of such wall
(RPAPL § 611). Courts have construed this provision narrowly ( see Christopher v Rosse, 91 AD2d 768, 769 [3d Dept 1982]; 1380 Madison Ave. v 17 E. Owners Corp., 2003 NY Slip Op 51309U, *9, 2003 NY Misc LEXIS 1259 [Sup Ct, NY Ct 2003], affd 12 AD3d 156 [1st Dept 2004] [noting that "[t]he plain language of RPAPL 611 (2) demonstrates that it applies to actions challenging the construction of intrusionary exterior walls by a defendant"]).
Here, RPAPL § 611 is not applicable, as there is no allegation that the building on 113 Mulberry was erected partly upon the property of 115 Mulberry. Instead, plaintiff alleges that the building leaned into 115 Mulberry over time. Thus, RPAPL § 611 is inapplicable on its face.
Thus, defendant is not entitled to dismissal on statute of limitations grounds, as plaintiff sufficiently alleges a continuing trespass and nuisance through an encroachment for which defendant fails to create a presumption of entitlement to a prescriptive easement, and to which RPAPL § 611 does not apply.
B. Defendants Substantive Arguments
Defendant argues that plaintiff's first cause of action, for a declaration "that the abutting building is leaning and causing damage" should be dismissed because it does not fall within the ambit of CPLR 3001, as plaintiff simply asks the court to make a finding of fact, rather than to decide issues of law. Moreover, defendant argues that the declaratory judgment cause of action is unnecessary, since plaintiff, if it proves its claims of trespass and nuisance through an encroachment, is entitled to injunctive relief and monetary damages. Plaintiff does not respond to this part of defendant's motion.
CPLR 3001 provides, in relevant part, that:
The supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed. If the court declines to render such a judgment it shall state its grounds.
"A cause of action for a declaratory judgment is unnecessary and inappropriate when the plaintiff has an adequate, alternative remedy in another form of action . . ." ( Apple Records v Capitol Records, 137 AD2d 50, 54 [1st Dept 1988] [internal citation omitted]). Here, the trespass and nuisance causes of action require a determination of the same factual issue on which plaintiff seeks a declaration. Thus, a declaratory judgment is unnecessary and the branch of defendant's motion which seeks dismissal of plaintiff's first cause of action must be granted.
As to the trespass and nuisance claims, defendant argues that 113 Mulberry did not encroach on 115 Mulberry, relying on the testimony of Pesce, its land surveyor. However, plaintiff rebuts this showing by submitting the affidavit of Haynes, its land surveyor, who states that 113 Mulberry does encroach on 115 Mulberry. Thus, there is an issue of fact as to encroachment.
Defendant also argues that plaintiff cannot establish the intent required to succeed on its trespass and nuisance claims. For the trespass claim, defendant also argues that plaintiff fails to allege that defendant made an affirmative action that resulted in the encroachment.
Plaintiff does not allege that defendant took an affirmative action which resulted in the encroachment, but instead contends that defendant knew that the facade of 113 Mulberry was in need of repair, but failed to take action, which caused damage to 115 Mulberry.
"A claim for trespass requires an affirmative act constituting or resulting in an intentional intrusion upon plaintiff's property" ( Congregation B'nai Jehuda v Hiyee Realty Corp. , 35 AD3d 311 , 312 [1st Dept 2006] [internal citation omitted]). The Court of Appeals has specified that
while the trespasser, to be liable, need not intend or expect the damaging consequences of his intrusion, he must intend the act which amounts to or produces the unlawful invasion, and the intrusion must at least be the immediate or inevitable consequence of what he wilfully does, or which he does so negligently as to amount to wilfulness'
( Ivancic v Olmstead, 66 NY2d 349, 352, cert denied 476 U.S. 1117, quoting Phillips v Sun Oil Co., 307 NY 328, 331 [1954]).
As it does not allege that any act by defendant caused 113 Mulberry to encroach on 115 Mulberry, plaintiff fails to rebut defendant's prima facie showing that it lacked the intent required to be liable for trespass. As such, the branch of defendant's motion which seeks dismissal of plaintiff's trespass claim must be granted.
In contrast to trespass, and most other torts, nuisance focuses on "the consequences of conduct, the inconvenience to others, rather than the type of conduct involved" ( Copart Indus. v Consolidated Edison Co. of NY, 41 NY2d 564, 569 [internal citation omitted]). While acknowledging that "[t]here is perhaps no more impenetrable jungle in the entire law than that which surrounds the word nuisance," the Court of Appeals has held that "one is subject to liability for a private nuisance if his conduct is a legal cause of the invasion of the interest in the private use and enjoyment of land and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities" ( id. at 569 [internal quotation marks and citations omitted]).
Liability for nuisance may be predicated by a failure to act, as well as an affirmative act ( id. at 570; see also Puritan Holding Co. v Holloshitz, 82 Misc 2d 905, 906 [Sup Ct, NY County 1975] [holding defendant liable for nuisance where she failed to properly maintain her property, leading to a diminution in the value of adjacent properties]).
Here, defendant's principal, William Fung, has acknowledged that the facade of 113 Mulberry needs repair work (Fung Deposition, at 25). Since an affirmative act is not required to succeed on a private nuisance claim, in contrast to a trespass claim, plaintiff, through the testimony of its structural engineer and its land surveyor, raises material issues of fact as to whether defendant was negligent or reckless in failing to undertake these repairs, and whether such failure caused the encroachment and ensuing damage which plaintiff alleges. Thus, the branch of defendant's motion which seeks dismissal of plaintiff's claims for injunctive relief and monetary damages under a theory of nuisance must be denied.
C. Sanctions
Defendant seeks sanctions against plaintiff under 22 NYCRR § 130-1.1. Conduct in litigation is frivolous in New York if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false ( 22 NYCRR 130-1.1 [c]).
Defendant argues that plaintiff makes material misstatements of fact in the complaint, submitted false sworn documents, and that plaintiff's claim is without legal merit. Defendant's allegations that plaintiff asserted material falsities depend upon a finding that defendant's view of the facts is definitive. As making such a finding would be inappropriate, the court declines to sanction plaintiff pursuant to 22 NYCRR 130-1.1 (c) (3). Similarly, the court declines to sanction plaintiff under 22 NYCRR 130-1.1 (c) (1), as plaintiff's claims are not completely without merit, as shown by the foregoing discussion of the law.
Defendant's Motion for Damages Sustained by Preliminary Injunction
On May 5, 2009, this court granted plaintiff's application for a preliminary injunction and issued an order directing defendant to repair 113 Mulberry. On May 26, 2010, the court issued a second order, directing defendant to "comply with the Court's prior order . . . by repairing and removing gaps and/or cracks in the wall of its building located at 113 Mulberry . . . within 10 days of the date of this order." Both orders were reversed by the First Department, which held:
Plaintiff failed to show a likelihood of success on the merits, as there are disputed issues of fact and dueling expert testimony concerning whether defendant's building was leaning on — and thus causing damage to — plaintiff's building. Plaintiff also failed to demonstrate any formal notification that the exterior wall of defendant's building presented an unsafe condition. The balancing of the equities favors defendant, which should not be compelled to physically alter its building on the basis of disputed facts
( Essa Realty Corp. v J. Thomas Realty Corp. , 70 AD3d 483 , 483 [1st Dept 2009] [internal quotation marks and citations omitted]).
On September 18, 2009, the court directed plaintiff to post an undertaking in the amount of $10,890, and on October 1, 2009, the Fidelity and Deposit Company of Maryland issued an "Undertaking for Preliminary Injunction" in that amount. Defendant now seeks to discharge the undertaking and a hearing to determine the amount of legal fees it is entitled to recover for its efforts to vacate the injunction.
CPLR 6312 (b) provides, in relevant part, that
prior to the granting of a preliminary injunction, the plaintiff shall give an undertaking in an amount to be fixed by the court, that the plaintiff, if it is finally determined that he or she was not entitled to an injunction, will pay to the defendant all damages and costs which may be sustained by reason of the injunction . . .
CPLR 6315 provides: "[t]he damages sustained by reason of a preliminary injunction or temporary restraining order may also be ascertained upon motion on such notice to all interested persons as the court shall direct."
In Margolies v Encounter, Inc. ( 42 NY2d 475, 481), the Court of Appeals held that defendant was entitled to damages under CPLR 6312 and CPLR 6315 where the underlying action was discontinued after the preliminary injunction was vacated. The Court of Appeals, in J. A. Preston Corp. v Fabrication Enters., ( 68 NY2d 397, 407), limited Margolies to its "particular facts" and held that plaintiff was not entitled to a discharge of its undertaking following the Appellate Division's affirmance of an order granting it a preliminary injunction. The Court in J.A. Preston Corp. reasoned that:
a preliminary injunction, even when issued after an evidentiary hearing, depends upon probabilities, any or all of which may be disproven when the action is tried on the merits, and the affirmance of an order granting a preliminary injunction determines no more than that the discretion exercised in favor of granting the order was not based upon a demonstration of those probabilities so insufficient as to constitute an abuse of discretion
( id. at 406).
The Appellate Division, Second Department has subsequently held that the converse of the reasoning in J.A. Preston Corp., that is, that a defendant is not entitled to a discharge of an undertaking after the appellate court has reversed the trial court's grant of a preliminary injunction, "may be equally true" ( Straisa Realty Corp. v Woodbury Assoc. ( 185 AD2d 96, 99 [2d Dept 1993]). The Appellate Division, in Straisa Realty, reasoned:
Our prior order vacating the preliminary injunction did not determine, as a matter of law, that [plaintiff] could not prevail on its claims for equitable relief; we determined only that at that juncture, [plaintiff] had not made the requisite showing of probabilities. [Plaintiff] may yet prevail on its equitable claims, in which case the preliminary injunction it obtained would not, in hindsight, have been improvidently granted, notwithstanding our assessment of the deficiencies of [plaintiff's] showing at that time. Accordingly, for purposes of finally determining the propriety of a preliminary injunction to ascertain whether liability will attach as a consequence of the award thereof, the final determination' envisioned by CPLR 6312 (b) is the final determination of the merits of the plaintiff's claim for equitable relief
( Straisa Realty Corp., 185 AD2d at 99-100).
Here, as in Straisa, plaintiff may still prevail on its application for injunctive relief; as such, there has been no "final determination" of that claim pursuant to CPLR 6312 (b). Thus, defendant's motion for damages sustained by reason of the preliminary injunction is premature and must be denied.
Defendant's Motion to Reargue and Vacate
Defendant moves, pursuant to CPLR 2221 and CPLR 5015, to reargue and vacate portions of this court's order dated August 31, 2010 (the August 2010 Order). Defendant submits an attorney's affirmation which supported the underlying motion, in which the attorney stated that the motion sought "to compel Plaintiff to produce all evidence in its possession or control in support of its claimed damages for lost rents . . ." (O'Connell Affirmation, July 9, 2010, ¶ 2).
The first portion of the order upon which defendant seeks a modification states that "for the period 4/09 to date, plaintiff shall produce tax returns, profit and loss statements, cancelled checks and account statements memorializing rents paid and withheld . . ." (August 2010 Order, at 3). Defendant argues that there was an oversight with regard to the date from which those documents should be produced.
Specifically, defendant contends that the purpose of its seeking these documents was to substantiate plaintiff's claim that water damage arising from the cracked facade led to a diminution in rental profits, and that, in order to satisfy this purpose, it needs financial records from before and after the alleged withholding of rent by plaintiff's tenants. During oral argument on August 31, 2010, the court indicated that it was disposed to grant defendant's application for these records ( see August 31, 2010 Oral Argument, at 34). However, when the court stated that its understanding was that defendant sought the records from "4/9 to date" ( id.), neither party suggested otherwise. Moreover, the attorney's affidavit which defendant submitted with the underlying motion does not specify a date from which defendant was seeking financial information.
Nonetheless, in the present motion, defendant contends that its third notice for discovery and inspection, which it allegedly submitted with its motion to compel evidence of lost rents, requested financial documents dating back to January 1, 2007.
In opposition to this portion of defendant's motion, plaintiff argues that defendant did not object to the date suggested by the court at oral argument. Moreover, plaintiff argues that financial documents from before October 2008, when plaintiff's tenant allegedly began to withhold rent, are irrelevant.
The other portion of the August 2010 Order which defendant seeks to vacate states that "defendant is directed to produce all documents in its or its counsel's possession relative to the litigation or a privilege log" (Order, at 3). In the alternative, defendant requests that the order be modified such that it refers only to documents created by or obtained by third parties, or that it be modified such that plaintiff be ordered to do the same.
Defendant argues such a task is overly burdensome, and that describing the privileged communications would reveal information concerning the frequency of client communications while litigation is underway, which, defendant contends, without providing any citation, infringes on the attorney-client privilege, and may disclose protected information. Plaintiff argues that the production of a privilege log, by itself, does not violate any privilege.
CPLR 2221 (d) (2) provides that a motion to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion."
As to the branch of defendant's motion which seeks reargument and modification of the of the portion of the August 2010 order which states that "for the period 4/09 to date, plaintiff shall produce tax returns, profit and loss statements, cancelled checks and account statements memorializing rents paid and witheld," defendant makes a showing that the court intended to grant its motion to compel financial documents regarding rental payments. Defendant's motion was based upon its third notice for discovery and inspection, which requested financial documents dating back to January 1, 2007. Thus, defendant's motion should be granted to the extent that the portion of the August 2010 Order which directs plaintiff to produce financial records should be modified such that the production dates run from January 1, 2007 to present.
As to the branch of the motion which seeks reargument and modification of the portion of the August 2010 Order which states that "defendant is directed to produce all documents in its or its counsel's possession relative to the litigation or a privilege log," defendant fails to make a showing that the court has overlooked or misapprehended any matter of fact or law. Thus, defendant is not entitled to a modification of this portion of the August 2010 Order.
CPLR 5015 (a) provides:
The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: (1) excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry; or (2) newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404; or (3) fraud, misrepresentation, or other misconduct of an adverse party; or (4) lack of jurisdiction to render the judgment or order; or (5) reversal, modification or vacatur of a prior judgment or order upon which it is based.
Here, there is no issue as to default, newly-discovered evidence, fraud, or misconduct, lack of jurisdiction, or reversal, or vacatur of a prior judgment or order. Thus, while defendant is entitled to a modification regarding a date in the August 2010 Order, the branch of its motion which seeks to vacate the August 2010 Order pursuant to CPLR 5015 must be denied.
Defendant's Motion for Contempt Against Alfra
Defendant moves, pursuant to CPLR 2308, for an order which (1) holds non-party Alfra LLC (Alfra) in contempt for disobedience of a judicial subpoena; (2) directs Alfra to pay defendant the maximum statutory penalty; (3) directs Alfra to pay defendant's costs and attorney fees that it sustained as a result of its failure to comply with the subpoena; and (4) orders Alfra to testify at an examination before trial. Neither plaintiff nor Alfra oppose the motion.
On February 5, 2010, defendant served Alfra with a subpoena for testimony and documents regarding plaintiff's claims that Alfra, plaintiff's tenant, withheld rent because of leaks stemming from cracks in the facade of 115 Mulberry. Alfra failed to produce documents or appear for its deposition. On June 29, 2010, defendant issued a subpoena for testimony and documents to Focolare Restaurant (Focolare), the trade name of the business which Alfra operates at 113 Mulberry. Focolare, like Alfra, never produced any documents or appeared for its deposition. On August 20, 2010, this court signed a subpoena ordering Alfra to produce documents and appear for a deposition on September 30, 2010, and, pursuant to the requirements of CPLR 311-a, defendant personally served the subpoena to Alfra, which, again, did not comply.
CPLR 2308 (a) provides, in relevant part, that
Failure to comply with a subpoena issued by a judge, clerk or officer of the court shall be punishable as a contempt of court . . . A subpoenaed person shall also be liable to the person on whose behalf the subpoena was issued for a penalty not exceeding one hundred fifty dollars and damages sustained by reason of the failure to comply. A court may issue a warrant directing a sheriff to bring the witness into court. If a person so subpoenaed attends or is brought into court, but refuses without reasonable cause to be examined, or to answer a legal and pertinent question, or to produce a book, paper or other thing which he or she was directed to produce by the subpoena, or to subscribe his or her deposition after it has been correctly reduced to writing, the court may forthwith issue a warrant directed to the sheriff of the county where the person is, committing him or her to jail, there to remain until he or she submits to do the act which he or she was so required to do or is discharged according to law. Such a warrant of commitment shall specify particularly the cause of the commitment and, if the witness is committed for refusing to answer a question, the question shall be inserted in the warrant.
In order to find civil contempt, the court must find that the actions complained of were "calculated to, or actually did defeat, impair, impede, or prejudice defendant's rights or remedies" ( Taveras v General Trading Co., Inc. , 73 AD3d 659 , 659 [1st Dept 2010] [internal quotation marks omitted]); see also Clinton Corner H.D.F.C. v Lavergne, 279 AD2d 339, 341 [1st Dept 2001]). The party seeking a contempt order bears the burden of proof ( Rupp-Elmasri v Elmasri, 305 AD2d 394, 395 [2d Dept 2003], citing McCain v Dinkins, 84 NY2d 216, 227), and such proof must be clear and convincing ( Matter of Kraemer v Strand-O'Shea , 66 AD3d 901 , 901 [2d Dept 2009]).
Here, defendant has made a clear and convincing showing that Alfra, by failing to comply with the judicial subpoena, has impeded its rights to discovery regarding plaintiff's claim that it lost rental income due to the cracks in 115 Mulberry's facade. Thus, Alfra is in contempt of court for not complying with the judicial subpoena and is liable to defendant for the statutory penalty, $150. The court declines to grant further damages. Moreover, the branch of defendant's motion which seeks an order compelling Alfra to appear for an examination before trial is also granted.
CONCLUSION
Accordingly, it is
ORDERED that defendant's motion for summary judgment, Motion Seq. No. 009, is granted to the extent that the first and third causes of action are dismissed, while defendant's request for sanctions is dismissed, and the motion is otherwise denied; and it is further
ORDERED that defendant's motion for damages pursuant to CPLR 6315, Motion Seq. No. 010, is denied; and it is further
ORDERED that the branch Motion Seq. No. 011 in which defendant seeks leave to reargue its motion to compel production of evidence related to plaintiff's claim for lost rents is granted; and it is further
ORDERED that, upon reargument, the court modifies its order dated August 31, 2010 only to the extent that the period from which plaintiff is to produce tax returns, profit and loss statements, cancelled checks and account statements memorializing rents paid and withheld should run from January 1, 2007, instead of the date specified in the order; and it is further
ORDERED that the branch of Motion Seq. No. 011 in which defendant seeks to vacate this court's order dated August 31, 2010 is denied; and it further
ORDERED and ADJUDGED that non-party Alfra LLC is in contempt of court for failing to comply with a judicial subpoena; and it is further
ORDERED that non-party Alfra LLC is fined $150, payable to defendant; and it is further
ORDERED that a representative of non-party Alfra LLC with knowledge regarding rental payments made or withheld, for a period spanning September 2008 through the present, on the commercial space located at 115 Mulberry Street, New York, New York, is to appear for an examination before trial at the offices of Mound Cotton Wollan Greengrass, One Battery Park Plaza, New York, New York, on May 24 at 10:00 a.m.; and it is further
ORDERED that non-party Alfra LLC produce, at the examination before trial on May 24, 2011 its complete file concerning rents paid or withheld, for the period of September 2008 through the present, on the commercial space located 115 Mulberry Street, New York, New York; and it is further
ORDERED that non-party Alfra LLC will be purged of the contempt by paying the sum fined to defendant, and by appearing for the examination before trial; and it is further
ORDERED that defendant is to serve a copy of this order with notice of entry on non-party Alfra LLC by May 10, 2011.
In accordance with the accompanying Memorandum Decision, it is hereby
ORDERED that Motion Seq. Nos. 009, 010, 011, 012 are consolidated for disposition; and it is further
ORDERED that defendant's motion for summary judgment, Motion Seq. No. 009, is granted to the extent that the first and third causes of action are dismissed, while defendant's request for sanctions is dismissed, and the motion is otherwise denied; and it is further
ORDERED that defendant's motion for damages pursuant to CPLR 6315, Motion Seq. No. 010, is denied; and it is further
ORDERED that the branch Motion Seq. No. 011 in which defendant seeks leave to reargue its motion to compel production of evidence related to plaintiff's claim for lost rents is granted; and it is further
ORDERED that, upon reargument, the court modifies its order dated August 31, 2010 only to the extent that the period from which plaintiff is to produce tax returns, profit and loss statements, cancelled checks and account statements memorializing rents paid and withheld should run from January 1, 2007, instead of the date specified in the order; and it is further
ORDERED that the branch of Motion Seq. No. 011 in which defendant seeks to vacate this court's order dated August 31, 2010 is denied; and it further
ORDERED and ADJUDGED that non-party Alfra LLC is in contempt of court for failing to comply with a judicial subpoena; and it is further
ORDERED that non-party Alfra LLC is fined $150, payable to defendant; and it is further
ORDERED that a representative of non-party Alfra LLC with knowledge regarding rental payments made or withheld, for a period spanning September 2008 through the present, on the commercial space located at 115 Mulberry Street, New York, New York, is to appear for an examination before trial at the offices of Mound Cotton Wollan Greengrass, One Battery Park Plaza, New York, New York, on May 24 at 10:00 a.m.; and it is further
ORDERED that non-party Alfra LLC produce, at the examination before trial on May 24, 2011 its complete file concerning rents paid or withheld, for the period of September 2008 through the present, on the commercial space located 115 Mulberry Street, New York, New York; and it is further
ORDERED that non-party Alfra LLC will be purged of the contempt by paying the sum fined to defendant, and by appearing for the examination before trial; and it is further
ORDERED that defendant is to serve a copy of this order with notice of entry on non-party Alfra LLC by May 10, 2011.
This constitutes the decision and order of the Court.