Opinion
3066-05.
February 24, 2009.
Supreme Court Greene County All Purpose Term, February 20, 2009 Assigned to Justice Joseph C. Teresi.
McNamee, Lochner, Titus Williams, PC, Kenneth L. Gellhaus, Esq., Attorneys for Plaintiff, Albany, New York.
Joshua A. Sabo, Esq., Attorney for Defendant, Troy, New York.
DECISION and ORDER
Following a trial before this court held on June 21, 2006, plaintiff was granted a judgment against defendant in a total sum of Fifteen Thousand Three Hundred and Thirty Nine dollars 51/100 ($15,339.51), with interest, costs and disbursements. Plaintiff alleges that defendant has not paid any portion of such judgment, which is unrefuted by defendant.
In attempting to collect on such judgment, plaintiff served defendant with three separate subpoenas. The subpoenas are directed, respectively, to: Dwight Bowler, Dwight Bowler as member/officer of Stillwater Hydro Associates, LLC and Dwight Bowler as a member/officer of Rowland Street Associates, LLC. The subpoenas are all ad testificandum and duces tecum. They were each served personally upon defendant in his individual capacity and in his capacities with the two companies. The defendant, as directed by the subpoenas, appeared and testified at plaintiff's attorney's office. He refused to provide any documents in response to the plaintiff's subpoenas duces tecum and provided only limited testimony in response to plaintiff's subpoenas ad testificandum.
Plaintiff now moves to hold defendant in contempt for his failure to comply with the three subpoenas served upon him. Defendant opposes the motion. Because plaintiff has demonstrated defendant's contempt with clear and convincing evidence, plaintiff's motion is granted.
"Refusal or willful neglect of any person to obey a subpoena . . . issued . . . pursuant to this title . . . shall . . . be punishable as a contempt of court." (CPLR § 5251) "If it is determined that the accused has committed the offense charged; and that it was calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of a party to an action . . . the court . . . must make a final order directing that he or she be punished by fine or imprisonment, or both". (Judiciary Law § 770) "To sustain a civil contempt, a lawful judicial order expressing an unequivocal mandate must have been in effect and disobeyed . . . the party to be held in contempt must have had knowledge of the order [and] . . . prejudice to the rights of a party to the litigation must be demonstrated." (McCain v. Dinkins, 84 NY2d 216, 226 [ 1994] [internal citations omitted]). However, a finding of contempt requires the Court to find that there are no "less drastic" means of enforcement available. (MacKinnon v . MacKinnon, 277 AD2d 636, 638 [3d Dept. 2000]). In order to prevail on a motion to hold another in contempt "[t]he contempt must be proven by clear and convincing evidence". (Rienzi v. Rienzi, 23 AD3d 447, 449 [2d Dept 2005]).
Here, plaintiff demonstrated, with clear and convincing evidence, that defendant intentionally refused to comply with plaintiff's subpoenas and there are no issues of fact which require a hearing. Plaintiff demonstrated, by three separate affidavits of service, that the subpoenas herein were duly served upon defendant. Defendant acknowledged receipt of the three subpoenas in a letter he sent to plaintiff's attorney on the same day he received the subpoenas. Such letter informed plaintiff's attorney that he would "not turn over . . . any documents relating to" items specifically requested. Defendant again acknowledged receipt of the subpoenas and continued his refusal to fully comply when he appeared at plaintiff's attorney's office on the date directed by the subpoena. He again refused to produce any documents or testify about specifically requested items. Defendant did not refuse by claiming that the subpoenas were vague or that he did not understand what the plaintiff sought. Nor did he move to quash the subpoena, object to the relevancy of the inquiries or claim the information sought was privileged. Instead, defendant simply refused, at one point stating that the information sought was "on a need to know basis and you don't".
It is clear on this record that defendant's actions were calculated to or actually did defeat, impair, impede or prejudice the rights of the plaintiff. He appeared on the date and time, and at the location, directed in the subpoena. He acknowledged having both documents and knowledge sought by the subpoenas, but refused to provide same. Defendant's continual intentional refusal to comply with the plaintiff's subpoena's mandate impaired and impeded plaintiff's right to obtain information it was entitled to and in enforcing its judgment.
Defendant now claims that he cannot be held in contempt for his refusing to comply with the subpoenas because they did not express an unequivocal mandate. Defendant demonstrated that the body of the subpoena that was directed to him personally commanded "Peter Morales" to appear. Defendant also demonstrated that he was the manager and not a member or officer of Stillwater Hydro Associates, LLC or Rowland Street Associates, LLC. Plaintiff's subpoena, however, were directed to "Dwight Bowler as member/officer of Stillwater Hydro Associates, LLC" and "Dwight Bowler as a member/officer of Rowland Street Associates, LLC". The errors shown by defendant do not negate the unequivocal nature of the subpoena's directives. Rather they are mere ministerial errors, disregarded by defendant when he appeared at plaintiff's attorney's office pursuant thereto, and now used in an untimely attempt to justify his intentional disobedience to the plaintiff's subpoenas. Defendant previously acknowledged that he was the individual subpoenaed and knew what the plaintiff sought. He cannot now, when faced with a contempt motion, reverse himself and claim that he was not so subpoenaed and that there was no unequivocal mandate.
Moreover, plaintiff also demonstrated that there are no "less drastic" means of enforcement available. (MacKinnon v . MacKinnon, 277 AD2d 636, 638 [3d Dept. 2000]; Rienzi v. Rienzi, 23 AD3d 447, 449 [2d Dept 2005]). Plaintiff demonstrated that its subpoenas were duly served, that defendant appeared for questioning, understood the questions, but simply refused to comply. Additionally, this motion was adjourned for two months, upon the consent of the parties, to allow for compliance. However, defendant has yet to comply. Nor has defendant made any showing that "less drastic" means of enforcement would cause his compliance with these subpoenas.
Accordingly, this court grants plaintiff's motion to hold defendant in contempt and fines defendant $250.00 plus plaintiff's costs and expenses of its bringing this motion. Said fine will be paid to plaintiff, through this Court pursuant to § 773 of the Judiciary Law. Defendant may purge this finding of contempt, and the fine will be waived, if he fully complies with plaintiff's three subpoenas set forth above within thirty (30) days of the date this Decision and Order is served upon him. In the event defendant fails to purge this contempt finding, plaintiff shall submit to this court an affidavit demonstrating its costs and expenses (including attorney's fees) in obtaining defendant's compliance herein, on notice to defendant. (Ahmad v. Naviwala, 14 AD3d 819 [3d Dept. 2005]). The defendant will then have ten (10) days, from the date of such submission's service on him, to submit opposition papers thereto. Thereafter the fine imposed must be paid by defendant within thirty (30) days of the date of the Decision and Order setting the fine amount.
All papers, including this Decision and Order, are being returned to the attorney for the plaintiff. The signing of this Decision and Order shall not constitute entry or filing under CPLR § 2220. Counsel are not relieved from the applicable provisions of that section respecting filing, entry and notice of entry.
So Ordered.PAPERS CONSIDERED:
1. Order to Show Cause, dated November 19, 2008; Affirmation of Kenneth Gellhaus, dated November 8, 2008, with attached Exhibits "A" — "G".
2. Affirmation of Joshua Sabo, dated February 13, 2009, Affidavit of Dwight Bowler, dated February 13, 2009 with attached Exhibits "A" — "B".
3. Affirmation of Kenneth Gellhaus, dated February 19, 2009, with attached Exhibit "A".