Opinion
Index No.: 108267/10 Seq. No.: 004
05-25-2012
Uoudmila Kudelka and Flow Brandeslgn, LLC, Plaintiffs, v. Plerre Brooks and Pet Warehouse Distributors Inc., Defendants.
DECISION/ ORDER
PRESENT:
Hon. Judith J. Ghche
J.S.C.
Recitation, as required by CPLR § 2219 [a] of the papers considered In the review of ________ (these) motion(s):
+------------------------------------------------+ ¦Papers ¦Numbered¦ +---------------------------------------+--------¦ ¦Pltf's OSC (Contempt) w/OW affirm, exhs¦1 ¦ +---------------------------------------+--------¦ ¦Affld. of Service ¦2 ¦ +---------------------------------------+--------¦ ¦ProposadWarran ¦3 ¦ +------------------------------------------------+
Upon the foregoing papers, the decision and order of the court is as follows:
This is plaintiff's motion for an order adjudicating defendant Pierre Brooks ("Brooks") in contempt for his failure to comply with the Subpoena to Take Deposition of Judgment Debtor ("subpoena") that plaintiff served on him. Plaintiff obtained a money judgment against Brooks ("money Judgment") that he owes, but failed to pay. Plaintiff is attempting to enforce and satisfy this money judgment. CPLR § 5225; Gabor v. Renaissance Associates, 170 A.D.2d 390 (1" Dept. 1991).
Although plaintiff has filed proof of service of the within motion, Brooks did not appear for oral argument on the return date of the motion. He has not opposed the motion in writing. Therefore, this motion has been submitted to the court on default, and without opposition. This Is not the first time Brooks has defaulted in this case. The money judgment was also entered against her on default (see Final Judgment dated March 19, 2012).
As of the date of this motion, the money judgment remains unsatisfied. The subpoena was served upon Brooks to obtain information about his income and assets so that plaintiff can ascertain whether any of these assets are available to satisfy the Judgment Without Brooks' cooperation, plaintiff has no other source of information about his income.
Plaintiff has established that it served the subpoena on April 14, 2011. CPLR § 5224 (a); CPLR § 308. The notice provision of the subpoena contains the date (April 28, 2011), time (2:00 pm) and place (plaintiff's attorney's office) where he had to appear for his deposition. Brooks, however, failed to appear as directed. The subpoena warned him that his failure to appear would be punishable by contempt The court has previously found Brooks In contempt of this court on September 9, 2011 and again on March 15, 2012.
Contempt Is a drastic remedy which should not be granted absent a clear right to such relief. Pinto v. Pinto. 120 A.D.2d 337 (1st Dept. 1986); see also Usina Costa Pinto SA v. Sanco Say Company Limited, 174 A.D.2d 487 (1st Dept. 1991). To prevail on a motion to punish a party for civil contempt the movant must demonstrate that the alleged contemnor has violated a clear and unequivocal court order, known to the parties. DRL §245; Judiciary Law § 753[A][3]; See also: McCormick v. Axelrod, 59 NY2d 574, 583 amended 69 NY2d 652 (1983); Puro v. Puro, 39 AD2d 873 (1st Dept. 1990); Dalesslo v. Kressler, 6 AD.3d 57 (2d Dept. 2004). The actions of the alleged contemnor must have been calculated to, or actually defeated, impaired, Impeded or prejudiced the rights or remedies of the other side. Farkas v. Farkas, 209 AD2d 316 (1 st Dept. 1994). A party seeking contempt must show that there are no alternative effective remedies available. Farkas v. Farkas, 201 AD2d 440 (1st Dept. 1994) [remedies].
Plaintiff has proven that this motion was served on Brooks. Judiciary Law § 761; Mlnzer v. Heffner Agency Inc., 214 AD2d 547 (2nd dept 1994); Hampton v. Annal Management Co. Ltd, 168 Misc2d 138 (Sup Ct N.Y. Co. 1996). The notice provisions of the motion warn Brooks that he may be punished by the imposition of a fine, or imprisonment, or both, thus complying with the requirements of Judiciary Law § 756. Plaintiff has also established that the Information sought in the subpoena is to aid it in the recovery of the money it is due and its collection efforts. CPLR § 5251; Gabor Renaissance Associates, 170 AD2d 390 (1" Dept 1991); See also: Skylake State Bank v. Solar Heat and Insulation, 148 Mlsc2d 559 (Sup Ct., N.Y. Co. 1990). Although defendant has actual knowledge of the subpoena and its terms, he disregarded it and failed to appear for his deposition, one more than one occasion, the last of which was scheduled, by this court, to take place on October 13, 2011, under the penalty of contempt. Ottomanelll v. Ottomanelll, 17 A.D.3d 647 (2nd Dept 2005). The failure to comply with a subpoena issued by an officer of the court shall be punishable as a contempt of court. CPLR § 2308 [a].
Plaintiff has established Brooks' disobedience of the subpoena has defeated, impaired, impeded or prejudiced plaintiff's right to ascertain information about defendant's financial resources. Judiciary Law § 753 [a]; Farkas v. Farkas, 209 AD2d 316 (1st Dept. 1994); Great Neck Pennysayer v. Central Nassau Publications, 65 AD2d 616 (2nd dept. 1978). Plaintiff has also shown that there are no alternative effective remedies available. Farkas v. Farkas, 201 AD2d 440 (1st Dept 1994). Indeed, notwithstanding prior orders of contempt imposing less severe remedies, Brooks continues his pattern of non-compllanoe. Plaintiff's motion, to hold defendant Brooks in contempt for falling to comply with the subpoena, is granted.
The court hereby Imposes the following punishment The court adjudicates Pierre Brooks to be in contempt of court. A separate warrant for his arrest, so that he may be brought before the court for a hearing, has been issued. Conclusion
In accordance with the foregoing decision, It is hereby.
ORDERED that plaintiff's motion for an order adjudicating defendant debtor Pierre Brooks in contempt is hereby GRANTED upon default; plaintiff has proved that Brooks was served with the information subpoena requiring him to appear for her deposition, but disregarded the subpoena; and it Is further
ORDERED that Brooks' disobedience of the subpoena has defeated, impaired, impeded or prejudiced plaintiff's right to ascertain information about defendant's financial resources and plaintiff has no alternative effective remedies available; and it further
ORDERED that the court has issued a separate warrant for Brooks' arrest, so that he may be brought before the court for a hearing; and it is further
ORDERED that any relief requested that has not been addressed has nonetheless been considered and is hereby expressly denied; and it is further
ORDERED that this constitutes the decision and order of the court.
Dated: New York, New York
May 25, 2012
So Ordered:
___________________________
Hon. Judith J. Gische, J.S.C.