Opinion
Index No.: 102582/2011
12-12-2011
IN THE MATTER OF THE APPLICATION OF RUSSELL HOFFMAN, INDIVIDUALLY AND AS PRESIDENT OF HELM CAPITAL GROUP, INC., Petitioners, v. WESTCHESTER COUNTY, JOHN WARNER, CHIEF CLERK NEW YORK COUNTY AND J.H.O. IRA GAMMERMAN, Respondents.
For Petitioner: James Michael Lenihan White Plains. NY 10601 For Respondent J.H.O. Gammerman: Eric T. Schneiderman, Attorney General New York. NY 10271
DECISION AND ORDER
For Petitioner:
James Michael Lenihan
White Plains. NY 10601
For Respondent J.H.O. Gammerman:
Eric T. Schneiderman, Attorney General
New York. NY 10271
Papers considered in review of this petition:
Verified Petition..................1HON. SALIANN SCARPULLA, J.:
Verified Answer.................2
In this Article 78 proceeding for a writ of prohibition, petitioner Russell Hoffman ("Hoffman"), Individually and as president of Helm Capital Group, Inc. seeks to stay an order for arrest issued by respondent J.H.O. Ira Gammerman ("Gammerman") on February 2, 2011, to vacate a prior order of contempt, and to stay all further contempt proceedings and post-judgment proceedings.
Hoffman is the president of Helm Capital Group, Inc. ("Helm"), defendant in the-action Jeffrey Hoffman v. Helm Capital Group, Inc., Index No.: 603109/2008 ("underlying action"). In that action, Hoffman's brother Jeffrey Hoffman sought to recover monies he allegedly loaned to Helm in or around 2005. On December 22, 2008, the parties in that case stipulated to the assignment of the case to Gammerman as Judicial Hearing Officer, with the "authority to exercise all the powers of a Justice of this court..."
On or about March 26, 2009, judgment was entered in the underlying action in favor of Jeffrey Hoffman and against Helm in the amount of $539,612.24. Following entry of judgment, Jeffrey Hoffman commenced discovery pursuant to Article 52 to collect on the judgment, and sought to take Hoffman's deposition and to obtain certain business records. After Hoffman failed to appear on several occasions and failed to comply with certain court orders, Jeffrey Hoffman moved for an order of contempt. On March 15, 2010, Gammerman entered a Final Order of Contempt. Hoffman still failed to produce records and other subpoenaed documents.
On September 2, 2010, an arrest order was issued by Gammerman and on September 24, 2010, Hoffman was brought before the court and ordered to produce a complete set of Helm's bank records and any other documents relevant to determining the worth and location of Helm's assets. On December 22, 2010, Gammerman ordered Hoffman to produce the records by December 27, 2010 or face arrest and further fines. At a hearing conducted before Gammerman on January 3, 2011, the Court again ordered Hoffman to produce the records, this time by-January 31, 2011. According to Hoffman, the subject records were either destroyed, removed from the company, or being held by the accountants who are attempting to "restructure the books after [Jeffrey Hoffman] orchestrated an audit that it made it look like the company was virtually worthless."
Hoffman's counsel claimed that he was on trial on January 31, 2011 and sent an affirmation of actual engagement to Gammerman on January 30, 2011. Hoffman and his counsel did not appear in court on January 31, 2011 and as a result, Gammerman issued an Order for Arrest of Judgment Debtor filed February 2, 2011.
On March 3, 2011, Hoffman commenced this Article 78 proceeding seeking to prohibit Gammerman from holding him in contempt and to vacate the arrest order. At oral argument, this Court stayed the arrest warrant but did not vacate the contempt order. This Court indicated that Hoffman could appeal from the January 3, 2011 order, and shortly thereafter, Gammerman produced a so ordered copy of the January 3, 2011 transcript so that Hoffman could appeal. Hoffman did not perfect an appeal, and this proceeding was submitted for decision.
In his petition, Hoffman first alleges that as a judicial hearing officer, Gammerman was without legal or judicial authority to hold Hoffman in contempt or to issue an order or warrant for his arrest. Hoffman further explains that he did not appear in Court on January 31, 2011 because his counsel advised him that as Helm, a corporation, was the defendant in the underlying action, it could only appear through counsel, and counsel was not available to appear in court before Gammerman that day. Finally, he claims that the records that Gammerman ordered him to produce are a trade secret and would negatively impact Helm and, in any event, many of the documents were removed or destroyed by Jeffrey Hoffman.
In opposition, Gammerman argues that Hoffman had an adequate remedy at law which he failed to exercise and therefore, the remedy of prohibition is unavailable. He further argues that in any event, there are no grounds for a writ of prohibition because he did not act without authority or in excess of his jurisdiction in any of his rulings or orders in the underlying action. The parties stipulated to have Gammerman hear and determine all aspects of the action and to exercise all of the powers of a Supreme Court Justice. Discussion
The remedy of prohibition is available only where there is a clear legal right, and then only when a court—in cases where judicial authority is challenged-acts or threatens to act either without jurisdiction or in excess of its authorized powers. Holtzman v. Goldman, 71 N.Y.2d 564, 569 (1988); Lipari v. Owens, 70 N.Y.2d 731, 732 (1987); Galinson v. Graci, 182 A.D.2d 819 (2nd Dept. 1992). However, prohibition does not lie, even if there has been an excess of jurisdiction, if there is available an adequate remedy, by way of appeal or otherwise. Molea v. Marasco, 64 N.Y.2d 718 (1984), Mahl v. Donovan, 191 A.D.2d 565 (2nd Dept. 1993).
Here, this Court gave Hoffman the opportunity to appeal from the "so ordered" January 3, 2011 transcript in which Gammerman ordered Hoffman to produce the subject records. He also had the opportunity to appeal from the contempt order and the underlying judgment. Hoffman failed to pursue these available remedies and has failed to provide any explanation for his failure to do so. Accordingly, the remedy of prohibition is not available.
In accordance with the foregoing, it is hereby
ORDERED and ADJUDGED that the petition of Russell Hoffman, Individually and as president of Helm Capital Group, Inc. is denied and the proceeding is dismissed; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment accordingly.
This constitutes the decision, order and judgment of the Court.
Dated: New York, New York
December 12, 2011
ENTER:
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Scarpulla, J.S.C