Opinion
21040057
03-15-2022
David M. Mills, Plaintiff, v. Christopher M. Oliver, Defendant.
David M. Mills Plaintiff pro se
David M. Mills Plaintiff pro se
Barbara Seelbach, J.
Plaintiff David M. Mills moves for an order to compel Defendant Christopher M. Oliver to satisfy the judgment entered against him and to hold him in contempt for his failure to reply to a post judgment information subpoena (Motion No.1). Plaintiff also seeks treble damages (Motions #2 and 3). All three motions are unopposed.
The following papers were submitted and reviewed: Papers Numbered
Notice of Motion to compel/Affidavit in Support of David M. Mills/Exhibits A-D 1-3
Notice of Motion for treble damages/Affidavit in Support of David M. Mills/Exhibits A-C, C2, D-E, E-2/Affidavit of Service 4-7
Notice of Motion for treble damages/Affidavit in Support of David M. Mills/Exhibits A-B 8-10
By way of background, the Town of Hyde Park, where Defendant lives and holds a place of business, held original small claims jurisdiction over this matter. However, both town justices in Hyde Park recused and the matter was transferred by Dutchess County Court to this court on April 26, 2021. Due to COVID pandemic restrictions and in compliance with the administrative orders of the Chief Judge, the matter was held in abeyance and placed on the court calendar on July 19, 2021. The court clerk noticed the parties via regular and certified mail to appear on July 19, 2021. The U.S. Post Office did not return any of the mailings to the court. On July 19, 2021, Plaintiff appeared at the scheduled time of the proceeding, but the Defendant did not. The court delayed the proceeding for an hour to await Defendant's appearance to no avail. Hence, an inquest was held and judgment was entered against the Defendant in the amount of $537.65.
On November 1, 2021, Plaintiff filed the judgment with the Dutchess County Clerk. The judgment remained unsatisfied for more than 30 days. As a result, on December 3, 2021, the Plaintiff served informational subpoenas on the Defendant by certified mail, return receipt requested. Defendant failed to comply with the post-judgment informational subpoena. Accordingly, on December 21, 2021, Plaintiff served the instant motions for contempt and treble damages upon the Defendant. Plaintiff properly served the motions via first-class and certified mail. Plaintiff provided proof of service in the form of an affidavit of service.
Contempt
Pursuant to Judiciary Law §753, a court has the power "to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced."
Prior to a finding of civil contempt, the court must determine as follows:
"(1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect;
(2) that the order was disobeyed and the party disobeying the order had knowledge of its terms; and
(3) that the movant was prejudiced by the offending conduct."(Abizadeh v. Abizadeh, 190 A.D.3d 797 [2d Dept. 2021]; Cover v. Cover, 173 A.D.3d 970, [2d Dept. 2019]; Town of Riverhead v T.S. Haulers, Inc. 68 A.D.3d 1103 [2d Dept. 2009].
Irrespective of whether a party moves for contempt by order to show cause, or as here, by notice of motion, there shall be compliance with the statutory requirement notice. To wit, Judiciary Law §576 states "the application shall contain on its face a notice that the purpose of the hearing is to punish the accused for a contempt of court, and that such punishment may consist of fine or imprisonment, or both, according to law together with the following legend printed or type written in a size equal to at least eight point bold type:
WARNING:
YOUR FAILURE TO APPEAR
IN COURT MAY RESULT IN
YOUR IMMEDIATE ARREST
AND IMPRISONMENT FOR
CONTEMPT OF COURT."
It is well settled that the failure of the movant to include the notice or the warning language in accordance with Judiciary Law Section 576 constitutes a jurisdictional defect, one which requires the court to deny the application (see Community Preserv. Corp. v Northern Blvd. Prop., LLC, 139 A.D.3d [2d Dept 2016]; Matter of Devine, 126 A.D.2d 491, 495 [1st Dept 1987]. Since "contempt is a drastic remedy, ... strict adherence to procedural requirements is mandated" (Matter of Roajas v Recant, 249 A.D.2d 95, [1st Dept 1998]; see Matter of Loeber v Teresi, 256 A.D.2d [3d Dept 1998]). Here, Plaintiff's failure to include the warning language and the warning provisions on the notice of motion in accordance with the statutory provisions renders the motion jurisdictionally defective on its face. (see Community Preserv. Corp., 139 A.D.3d at 890. Therefore, the motion must be denied.
Treble Damages
Uniform Justice Court Act ["UJCA"], Section 1811 ("Notice of Small Claims Judgments and indexing of 'small claims'") sets forth the notice procedure to a judgment debtor and the various enforcement remedies available to a claimant. They include treble damages in the amount of the unsatisfied judgment plus attorneys' fees, if there are other unpaid claims. UJCA §1811[9].
UJCA Section 1812 (a) states that treble damages are only available when:
"1. there is a recorded judgment of a small claims court; and
2. (i) the aforesaid judgment resulted from a transaction in the course of the trade or business of the judgment debtor, or arose out of a repeated course of dealing or conduct of the judgment debtor, and
(ii) there are at least two other unsatisfied recorded judgments of a small claims court arising out of such trade or business or repeated course of dealing or conduct, against that judgment debtor; and
3. the judgment debtor failed to satisfy such judgment within a period of thirty days after receipt of notice of such judgment. Such notice shall be given in the same manner as provided for the service of a summons or by certified mail, return receipt requested, and shall contain a statement that such judgment exists, that at least two other unsatisfied recorded judgments exist, and that failure to pay such judgment may be the basis for an action, for treble the amount of such unsatisfied judgment, pursuant to this section."
Here, it is undisputed the instant judgment was recorded with the Dutchess County Clerk and the judgment debtor failed to satisfy it within thirty days of receipt of the judgment. However, Plaintiff's request for treble damages was presented to the court in improper form. UJCA 1812 (3) (b) states "Where each of the elements of subdivision (a) of this section are present the judgment creditor shall be entitled to commence an action (emphasis added) against said judgment debtor for treble the amount of such unsatisfied judgment" That is, the claimant may start a new enforcement action and seek such various relief, including treble damages. Here, the claimant has not commenced a new action, but rather, has filed a post judgment motion in the original action. As this is not the authorized means or remedy to seek treble damages, the Court is constrained to deny the motion.
Accordingly, it is hereby
ORDERED that the motion to compel Defendant Christopher M. Oliver to satisfy the judgment and to hold him in contempt for failure to comply with the information subpoena is denied without prejudice to renew upon proper papers, and it is further
ORDERED that the motion for treble damages against the Defendant Christopher M. Oliver is dismissed.
The foregoing shall constitute the Decision and Order of the court.