Opinion
CV-15294/16
10-21-2019
HOME HEATING OIL CORP., Plaintiff, v. Beverly PARRIS, Defendant.
Daniel Edward Sully241 86th StreetBrooklyn, NY 11209(718)-748-8257Counsel for Plaintiff Beverly Parris1671 Carroll StreetBrooklyn, NY 11213Defendant, pro se
Daniel Edward Sully241 86th StreetBrooklyn, NY 11209(718)-748-8257Counsel for Plaintiff
Beverly Parris1671 Carroll StreetBrooklyn, NY 11213Defendant, pro se
Sandra E. Roper, J.
INTRODUCTION
Plaintiff moves This Honorable Court to Arrest and Fine Defendant-Judgment Debtor to Punish for Contempt of Court for willful refusal to comply with Information Subpoena with Restraining Notice. For the reasons set forth below, Plaintiff-Judgment Creditor's Order to Punish for Contempt of Court is DENIED.
PROCEDURAL AND FACTUAL HISTORY
Case at Bar commenced on September 8, 2016 by Plaintiff against Defendant for the following cause of action: "Other in the amount of $22,473.77," with interest from September 8, 2016. Default judgment was entered February 14, 2017 in the amount of $23,763.15. On May 22, 2019 in duplicate and with a self-addressed stamped return envelope by certified mail return- receipt requested as well as by regular mail with a certificate of proof of mailing, Plaintiff served upon Defendant post-judgment Information Subpoena with Restraining Notice, containing the language "False swearing or failure to comply with this subpoena is punishable as a contempt of court. " Thereafter, Plaintiff made three further attempts with respective certificates of proof of mailing, with same June 26, 2019, July 16,2019 and August 15, 2019 to Defendant. Having received no response from Defendant, on September 12, 2019, Plaintiff filed instant Motion for Punishment Order for Contempt to arrest and fine Defendant-judgment debtor.
Information Subpoena commands written responses to written questions (CPLR 5224 [3] ); subpoena duces tecum "requires production of books, papers and other things" (5224 [2] ), whereas a subpoena (also referred to as subpoena ad testificandum) "requires the attendance of a person to give testimony" (CPLR 5224 [1] ); CPLR 2301 ; see also NY Crim Proc Law § 610.10 [3] ). It has been held, where judicial command is written with sufficient specificity to apprise party commanded with notice as to its obligations under said written judicial mandate, as in a subpoena, then the inquiry becomes whether the subpoena is sufficient to uphold a charge of contempt punishment in failure to comply with said obligations by party commanded (see , Maritime Fish Products, Inc. v.World-Wide Fish Products, Inc. , 474 NYS 2d 281, 100 AD2d 81, 1984 NY App Div LEXIS 16979 ).
DISCUSSION
"Refusal or willful neglect of any person to obey a subpoena shall each be punishable as a contempt of court" ( CPLR 5251 ). Contempt punishment is a rather drastic punitive enforcement tool statutorily bestowed upon courts in both criminal and civil jurisdictions from the very creation of the judicial system from the King's Bench. Consistent with court's inherent powers to punish parties for failure to adhere and comply to court's mandates and to preserve the court's authority over the conduct of private parties as in civil matters, or society at large, to wit, The People , as in criminal matters. To so do, there must be some teeth, some stick to the court's enforcement powers. Contempt punishment is that enforcement tool statutorily provided to the courts with the teeth and the stick to assert its power to demand that its commands be carried out by the contemnor. Contempt punishment, however, is not so readily granted without the utmost of fastidious due diligence and due deliberation by the courts, particularly in the context of civil matters. Contempt punishment is a crime in and of itself and therefore is punished within the criminal jurisdiction just as any other crime, which carries with it the imposition of a sentence of incarceration to the contemnor. It is for that reason, courts are reluctant to impose contempt punishment sentencing, whether by fine or more so drastic by a period of incarceration, particularly in civil matters. Nevertheless, such sentencing for contempt punishment carries the weight and gravitas that is sometimes required upon recalcitrant contemnors.
"Anglo-Saxon courts of justice are vested, by the very act of their creation, with the ‘power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates,’ and to protect the integrity of their proceedings and their officers from disruption and corruption. Historically, English and American courts have possessed this inherent authority to punish parties for contempt as of the moment they were constituted. When the judiciary exercises its inherent contempt power, it vindicates its authority and therefore its existence as an institution of separated government. Ancillary to the exercise of this inherent contempt power is the punishment or modification of behavior for the benefit of either the public generally or private suitors individually. Contrary to some inaccurate statements made by a myriad of American courts ranging from the "milk stool" (an idiom referring to the Criminal American Justice system as a three-legged milk stool comprised of 3 indispensable supporting branches — police, prosecutors and the courts, [U.S. Congress House Hearings 93d Congress. V.19, SELECT COMMITTEE ON CRIME, Street Crime in America [Prosecution and court innovation] Pts. 1-3.1st sess. April 9-13, 16-19; May 1-3, 8-9, 1973. At 149.] )- to America's highest, statutes regulating the judiciary's inherent contempt power are limitations on, not conferrals of, such power. While the judiciary's inherent contempt power is part of its definition as a political institution, its authority over penal law crimes of contempt is legislatively conferred. Crimes of contempt are entirely creatures of legislative enactment. They are conceptual cousins to those inherent powers wielded by courts to vindicate their own authority. The inherent judicial contempt power preserves both the court's authority and the rights of parties to a lawsuit. Under penal laws, courts punish contempt crimes just like any other crime, namely, by imposing a sentence for transgressions of the public's right to peace, security and good order" (Lawrence N. Gray, Article, Criminal and Civil Contempt: Some Sense of a Hodgepodge, 72 St. John's L. Rev. 337, 338-339 [1998] ).
Although governed by distinct statutory constructs, contempt punishment for disobeying a subpoena in both the civil and criminal jurisdictions are the same rules, protocols, processes and remedies. However, courts exercise an even higher level of due diligence and due deliberation where the underlying civil matter is for enforcement of money judgments. It is quite evident why the more drastic sentence of incarceration is so much more problematic and frowned upon by the courts in such an instance . Nevertheless, contemnors that intentionally flout civil court judicial commands, as is a subpoena, must be punished by the court in its power to regulate conduct within the judicial system. Otherwise, we would foster an anarchic society where courts would be devoid of authority to regulate behavior and conduct of persons. The judiciary branch of government is tasked with the enforcement of the legislative's branch duly circumscribed codified laws of behavior and conduct of its people. Therefore, after a court provides some level of latitude to the contemnor, there comes a watershed moment when the civil court, no matter how reluctantly it may find itself, must indeed exercise its punishment enforcement powers of contempt with all its full encompassing ramifications thereto. Indeed, there are accelerating harsh consequences to ensure that contemnors in civil actions truly comprehend the gravitas that is generally inherent in criminal matters. Not so evident in civil jurisdictions. Contemnors appear to trivialize civil matters as of no moment and its mandates as a subpoena may be unheeded and flouted without consequence thereto because it is not a criminal case. However, failure to comply with the judicial mandate of a subpoena in civil matters clearly states that not merely fines but also sentence of imprisonment is a consequence pursuant to CPLR 2308 (a) :
CPLR 2308 and its penal counterpart NY Crim Proc Law § 610.10.
Courts are quite wary of development of de-facto resurgence of the Debtors Prisons of old, from which the first colonizers from England fled from in the formation of this our country. Under those circumstances, here imposition of the drastic sentence of imprisonment in the enforcement of money judgment, indeed comes very close to Debtors prison, notwithstanding that we do have many federal and state safeguards to avoid such imprisonment for debtors. Actually, those federal and state exceptions to enforcement of money judgments are so codified perhaps resulting in a contemnor being judgment proof. Nevertheless, more recently there exists protests of the criminal jurisdiction as to the discriminatory effect of bail as well as fines and fees within the court system which result in incarceration for failure to pay, also coming very close to de-facto Debtors prisons. "Jailing criminal defendants who cannot pay their fines and court costs— commonly called debtors' prison—keeps them from jobs, hurts their families, makes them dependent on society, and costs the taxpayers money. Most importantly, it is illegal under the United States Constitution. Judges must determine whether a defendant is actually unable, not just unwilling, to pay a fine. A defendant whose liberty is at stake must be given a hearing and may be entitled to legal counsel. For the indigent, the fine must be waived and some alternative punishment arranged, such as community service or training. For those who can pay something but only by struggling, adding multiple fees threatens to drown the defendant in debt: there are extra fees for payment plans, for missed payments, for making payments—yes, there is even a fee for making a payment—pay to pay—warrant issuance fees, warrant service fees—the list goes on and on. And revoking a defendant's driver's license just keeps him from going to work to earn enough to pay the fines and fees" (The Twenty-First Annual Liman Colloquium, Who Pays? Fines, Fees, Bail, and the Cost of Courts , Pg. I-3, Yale Law School [April 5-6, 2018] ). However, it is much more objectionable to society as against such de-facto Debtors prison to be imprisoned for an underlying money judgment in the civil jurisdiction as opposed to in the criminal jurisdiction.
CPLR 2308.1, defines judicial subpoena "to mean a subpoena issued by a judge or the clerk or by any other ‘officer’ of the court. The ‘officer of the court’ includes attorney in the case, who issued the subpoena, and subdivision (a) may be regarded as embracing any subpoena returnable to a court or being used in connection with a judicial proceeding." Additionally, CPLR 2302 provides that a subpoena may be issued "without a court order by an attorney of record for a party to an action."
"Failure. to comply with a subpoena issued by a judge, clerk or officer of the court shall be punishable as a contempt of court. If the witness is a party the court may also strike his or her pleadings. 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."
The judicial subpoena must explicitly, in writing, state the specific commands being mandated, and only disobedience of that explicit written command shall be the subject to the very drastic punishment for contempt of court (see Application of Mullen , 31 NYS 2d 710, 177 Misc 734, 1941 NY Misc LEXIS 2442 ). Furthermore, Judiciary Law § 753A-A.5 likewise bestows upon a court of record the power to punish, "by fine and imprisonment, either a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action may be defeated, impaired, impeded, or prejudiced, in [the case of] a person subpoenaed as a witness, for refusing or neglecting to obey the subpoena, or to attend, or to be sworn, or to answer as a witness ." It is well established in the Second Department that the "mere act of disobedience is sufficient to sustain a finding of civil contempt where the record reveals that such disobedience was calculated to or actually did defeat, impair, impede, or prejudice the plaintiff's rights" ( Kaywood v. Cigpak, Inc. , 258 AD2d 623, 685 NYS 2d 770, 1999 NY Slip Op 01623 [2d Dept 1999] citing Yeshiva Tifferes Torah v.Kesher International Trading Corp , 246 AD2d 538, 667 NYS 2d 759 [2d Dept 1998] ; see also Oppenheimer v.Oscar Shoes , 111 AD2d 28, 488 NYS 2d 693 [1st Dept 1985] ; see also McNulty v. McNulty , 81 AD2d 581, 437 NYS 2d 438 [2d Dept 1981] ). A hearing may be ordered by the court to determine whether the "rights or remedies of a party to civil action may be defeated, impaired, impeded or prejudiced by any disobedience to lawful mandate of court." ( Great Neck Pennysaver v. Central Nassau Pubs. , 65 AD2d 616, 409 NYS 2d 544 [2d Dept 1978] ).
In addition, disobedience of a subpoena is further provided for pursuant to CPLR 5251, "refusal or willful neglect of any person to obey a subpoena shall each be punishable as a contempt of court ." Generally, CPLR Article 52 more specifically addresses the use of post-judgment judicial subpoenas for the enforcement of money judgments. Wherefore: "Although the contempt punishment is not available for the general enforcement of money judgments it does serve as the sanction to implement several of the devices that Article 52 of the CPLR offers to aid in the money judgment enforcement process. " Contempt punishment is considered a " back-up device " in the enforcement of money judgments pursuant to CPLR 5251. Where the service of a post-judgment subpoena upon a judgment debtor pursuant to CPLR 5224 is refused or willfully neglected then the procedural granting of an order for contempt punishment is rather effectuated pursuant to Judiciary Law § 750.
Richard R. Reilly, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C5251:1.
See id.
See id.
The manner of service of the subpoena is a vital consideration in the court's decision making in the meting out of the appropriate contempt punishment. Although subpoenas are "served in the same manner as a summons except that where service of such a subpoena is made pursuant to subdivision two or four of section three hundred eight of this chapter, the filing of proof of service shall not be required and service shall be deemed complete upon the latter of the delivering or mailing of the subpoena" ( CPLR 2303 [a] ); see CPLR 2308 [2] ; see also CPLR 2308 [4] ). Notwithstanding this practice being deemed sufficient as within the court's statutory authority, nevertheless courts are reluctant to order a finding of contempt punishment when service of subpoena was by substituted service rather than personal delivery (see Temporary State Commission on Living Costs and Economy v.Bergman , 80 Misc 2d 448, 363 NYS 2d 977 [Sup Ct, NY County 1975] ). Although CPLR 5224 (3) allows an information subpoena to be served "by registered or certified mail, return receipt requested," issues arise when the subpoenaed contemnor opposes or moves to quash the subpoena alleging non-receipt of the subpoena due to factors that may undermine any service other than personal delivery, such as substituted service (see id. [court quashed subpoenas served by substitute service in absence of a showing that parties served were residing in state when service was attempted] ).
In the instant matter brought by Notice of Motion for contempt punishment, there is a blatant unabashed pattern of defiance by contemnor Defendant to sustain an imposition of contempt punishment. Defendant has flouted all judicial protocols and procedures from the very commencement of the case, in failure to respond to the jurisdiction of the court, evidencing a trivialization of the inherent power of the civil court's authority. Defendant failed to interpose an answer pursuant to summons and complaint duly served. Defendant never appeared to challenge default judgment filed and duly served. Defendant willfully refused to respond in any way shape or form to the duly served information subpoena and restraining notice with its warning as to the penal consequences of Defendant's failure to comply by contempt of court. Defendant's continued willful disregard of the orders and authority of court is ever so evident in her utter disregard of this instant matter to punish her, where it clearly states in its Notice of Motion to punish Defendant "for her contempt with a fine of $250.00 and with imprisonment until she complies with the Information Subpoena and Restraining Notice ." Clearly it gives Defendant notice that a consequence of non-compliance of the duly served subpoena can be imprisonment. Yet still, threat of incarceration was of no moment to this recalcitrant Defendant.
That Defendant failed to comply nor respond to any of the four demands to judicial subpoena by Plaintiff and continues in her non-compliance with the subpoena even under threat of incarceration, clearly evidences that her actions were and continue to be "calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of" Plaintiff ( Oppenheimer v.Oscar Shoes , 111 AD2d 28, 488 NYS 2d 693 [1st Dept 1985], citing Judiciary Law § 753 ; Powell v.Clauss , 93 AD2d 883, 461 NYS 2d 413 [2d Dept 1983] ). Defendant's obvious disregard of all the court mandates from inception of this civil case up to and including failure to comply with the subpoena, a judicial mandate of the civil court, demonstrates her refusal and willful neglect to obey this subpoena and her rejection of the inherent power and authority of the civil court (see Great Neck Pennysaver v.Central Nassau Pubs. , 65 AD2d 616, 409 NYS 2d 544 [2d Dept 1978] ). The Second Department Appellate Division has long affirmed the holding of civil contempt punishment against judgment debtor for failing to submit to post-judgment subpoenas for the enforcement of money judgments pursuant to CPLR Article 52 (see Dubroff v.Norych & Tallis , 220 AD2d 480, 632 NYS 2d 165 [2d Dept 1995] ; see also Great Neck Pennysaver v.Central Nassau Pubs. , 65 AD2d 616, 409 NYS 2d 544 [2d Dept 1978] ).
However, courts are more so reluctant to impose contempt punishment orders for subpoena duces tecum, or information subpoenas where no appearance for deposition testimony is commanded, as is here. Under the specific facts and circumstances of this instant action, arrest and fine is against public policy for punishment order for contempt of court for failure to comply with an information subpoena with restraining notice. Contempt of court is a crime and therefore punishable as such. Whether by incarceration or by fine, these are punishments imposed as for a crime. Plaintiff-creditor here is a corporate entity with judgment for heating oil goods and service, a utility as a necessary sustenance for living such as is water for shelter in a home. There needs to be a distinction made in contempt punishment: whether the Defendant-judgment debtor is a natural person occupant residential home customer as opposed to a juridical corporate business building owner. Arguendo, where a contemnor defendant-judgment debtor is a business or corporate entity marketing its goods and services to an aggrieved plaintiff-natural person legislatively protected consumer, then the court's decision making is significantly of a different analysis. Such a defendants' authority to operate their business derives from the legislative branch and enforced by the judiciary. Such a defendant's business practices in their transactions with public consumers are likewise statutorily regulated and enforced by the judiciary. Therefore, said business defendant's willful refusal to adhere to the commands and mandates of the enforcement branch as is a judicial subpoena is even more untenable. It belies public policy and consumer protection to allow businesses to merely flout all judicial protocols, procedures, commands and mandates to the detriment of aggrieved public consumers without consequences. Such disobedience by contemnor business or corporate defendant-debtor evidences abject trivialization of the inherent power of the civil court's authority over their entities as operators of businesses marketed to the public consumer. In contrast, where, as appears here, contempt is being demanded for the imposition for arrest, incarceration until compliance with subpoena or a fine of $250.00 of a natural person occupant homeowner for failure to pay its debt for utility sets very bad precedent towards the de facto-debtors prison of old. Imposition of arrest and incarceration and even a fine under these circumstances is inherently unconscionable to society at large. It's akin to imprisonment for poverty. Here, Plaintiff requests this civil court to arrest and fine a natural person for failure to pay a bill for shelter reduced to a judgment. In the current legislative environment, in criminal court it has been found that arrest for fines as well as bail is discriminatory and inflicts undue burden on the poor and impoverished. This is deemed a dangerous trajectory towards resurgence of de-facto-debtors prison, more so considered unconscionable in civil court for enforcement of money judgments upon a natural person. Although it appears Defendant-debtor under the very specific circumstances as described herein may have indeed refused to comply with the commands of judicial subpoena duces tecum, this civil court shall not participate nor encourage any such trend towards de-facto debtors prison from the civil court and sends a very strong message to Plaintiff-creditors, particularly corporate-creditors with significant incongruency of power as against presumptively impoverished defendant-debtors. Plaintiff-corporate creditor has many mechanisms at its ken to investigate and satisfy its judgments short of arresting and fining impoverished or financially challenged natural persons under these circumstances.
See n 4.
For the foregoing reasons, NO order for arrest by sheriff neither NO fine shall be imposed upon Defendant-Debtor for Punishment Order for Contempt, for which Motion is DENIED.
This constitutes the opinion, decision, and order of This Honorable Court.