Opinion
02-24800
09-06-2018
G. Steven REINGOLD, Plaintiff, v. Barbara BOWINS, f/k/a Barbara S. Reingold, a/k/a Barbara Reingold Sass, Defendant.
Plaintiff's Attorney: IVARS BERZINS, P.C., 484 West Montauk Highway, Babylon, Ny 11702 Defendant Pro Se: BARBARA BOWINS REINGOLD, 5 Stratton Lane, Stony Brook, Ny 11790
Plaintiff's Attorney: IVARS BERZINS, P.C., 484 West Montauk Highway, Babylon, Ny 11702
Defendant Pro Se: BARBARA BOWINS REINGOLD, 5 Stratton Lane, Stony Brook, Ny 11790
Sanford N. Berland, J.
Upon the reading and filing of the following papers in this matter: (1) Motion brought by Order to Show Cause, by pro se defendant, dated January 3, 2018, and supporting papers; (2) Opposing Affirmation by plaintiff, dated January 10, 2018, and supporting papers; (3) Reply Affidavit, dated January 18, 2018; it is
ORDERED that Mot. Seq. # 023 made by pro se defendant seeking to reargue plaintiff's prior motion to punish defendant for contempt is denied; and it is further
ORDERED that plaintiff shall cause personal service of a copy of this order, with notice of entry, together with a copy of the December 11, 2017 order herein (Asher, J., ret.), with notice of entry, to be made upon defendant by personal delivery or by any other method of personal service permitted by CPLR 308, on or before September 28, 2018; and it is further
ORDERED that defendant, within 20 days after personal service of this order, with notice of entry, together with a copy of the court's December 11, 2017 decision and order (Asher, J.), with notice of entry, has been made upon her as directed in the foregoing decretal paragraph, shall pay the sum fined, $250.00, to plaintiff's attorney; and it is further
ORDERED that defendant may, within 20 days after personal service upon her of this order, with notice of entry, together with a copy of the court's December 11, 2017 decision and order (Asher, J.), with notice of entry, purge herself of the contempt by (a) paying to plaintiff's attorney the $250.00 sum fined or by appearing before the Court and demonstrating that she is unable to pay the fine, and (b) providing written responses to the information subpoena.
This a motion by the defendant-judgment debtor, brought on by order to show cause (January 3, 2018) for an order, pursuant to CPLR 2221, permitting her to reargue the plaintiff's motion to punish for contempt, which was granted by the court in a decision and order dated December 11, 2017 (Asher, J.), and upon the granting of such leave, vacating that decision and order and denying plaintiff's motion. For the reason that follow, the motion is denied.
On August 11, 2016, a money judgment was entered in favor of plaintiff and against defendant, awarding plaintiff the sum of $107,662.15 plus $17,629.20 in interest and $2,065.06 in costs. Defendant appealed from the judgment, and her appeal has been fully briefed in the appellate division, but she did she did not file the undertaking required for an automatic stay of enforcement of the judgment pending appeal (see CPLR 5519(b) ) and her motion for a discretionary stay of enforcement of the judgment, pursuant to CPLR 5519(c), ultimately was denied. The judgment remains unsatisfied.
See decision and order dated February 8, 2017 (Asher, J.).
After the judgment was entered and the defendant's then-attorney had been served with notice of its entry, plaintiff's counsel undertook to serve an information subpoena and two copies of a subpoena questionnaire, along with a restraining notice, a notice to the judgment debtor and a postage prepaid envelope, upon defendant by certified mail, return-receipt-requested (see CPLR 5224(a)(3) ), addressed to her at 27 Shelbourne Lane in Stony Brook, New York. Plaintiff's counsel has averred that after the certified mailing was returned by the Postal Service marked "unclaimed," the contents of the mailing were duplicated by him, and a process server located defendant at another house in Stony Brook and, on October 18, 2016, effected service of the information subpoena and other papers upon her there. On October 21, 2016, yet another copy of the information subpoena and the other papers were mailed to defendant at the Stony Brook address.
By notice of motion dated October 24, 2016, defendant - who concedes that she received the information subpoena, albeit in the mail - moved to quash or modify the subpoena, contending that it was "procedurally defective," that "proper notice was not given by the plaintiff" and that the purpose of the subpoena was to create an "undue hardship ... in the vain [sic] of harassment[.]" Plaintiff opposed the motion, and in a decision and order dated March 15, 2017, Justice Asher denied it, holding that defendant had failed to establish that the subpoena had not been properly served or that it was overly broad or unduly burdensome.
Notwithstanding the denial of her motion to quash or modify the subpoena, defendant did not thereafter comply with it, and on April 10, 2017, plaintiff moved for an order, pursuant to CPLR 5210 and Article 19 of the Judiciary Law, punishing the defendant for contempt. Plaintiff's counsel failed, however, to include with the motion copies of the underlying judgment with proof of its service upon the defendant and of the information subpoena and an affidavit attesting that it had been served upon the defendant along with the questionnaire and postage prepaid envelope as required by CPLR 5224. Because of those omissions, Justice Asher, in a decision and order dated June 2, 2017, denied plaintiff's motion, explicitly without prejudice to renewal. Less than three weeks later, on June 20, 2017, plaintiff's motion for contempt, again pursuant to CPLR 5210 and Article 19 of the Judiciary Law, was indeed renewed, with the required documentation that had been omitted from the prior motion attached. In a decision and order dated December 11, 2017, Justice Asher granted plaintiff's motion, finding that defendant was
"guilty of contempt of court by reason of her failure to respond to an information subpoena served upon her on October 18, 2016, and that such conduct was calculated to and did impair, impede and prejudice plaintiff's rights and remedies ...." (Citation omitted.)
Citing Judiciary Law & 773, Justice Asher fined defendant $250.00 and directed that such sum be paid to plaintiff's attorney within 20 days after "personal delivery" of his order to the defendant. Also in accord with Judiciary Law & 773 (third paragraph), Justice Asher further provided in the December 11, 2017 decision and order that the defendant could purge herself of the contempt, "within 20 days after personal service of this order," by (a) paying the sum fined or appearing before the Court to demonstrate that she was unable to pay the fine, and (b) providing written responses to the information subpoena. However, although plaintiff's counsel emailed a copy of Justice Asher's December 11, 2017 decision and order to an attorney who had been retained by the defendant to represent her in another matter, noting that "it would be easier if she signed an acknowledgment of service" rather than his paying "a process server to serve her," no such acknowledgment of service has been presented, and plaintiff's counsel concedes that the December 11, 2017 decision and order has not been served on defendant, explaining that his process server "reports that no one opens the door at defendant's home."
In support of her current motion, defendant offers a miscellany of assertions and arguments, among them that Justice Asher overlooked her contention that she was not properly served with the information subpoena; that plaintiff's failure to have the December 11, 2017 decision and order delivered to her personally, coupled with plaintiff's counsel emailing it to her attorney in another matter with the request that defendant provide an acknowledgment of service, constituted a deliberate attempt to cause her to incur additional legal fees, which should be sanctioned and vitiates the order; that as she has made plaintiff aware that her "ownership interest" in her house represents a quantum of equity that is "in massive excess" of the judgment in this action and will be used to satisfy the judgment if her appeal is unsuccessful, plaintiff's insistence on pursuing further asset discovery and seeking to punish her for failing to provide it is disingenuous and punitive; that it has been "virtually impossible" for her to obtain an appeal bond, staying enforcement of the judgment, because plaintiff has filed lis pendens against "6 separate pieces of property"; and that the fine levied by Justice Asher is five times greater than the fine permitted by CPLR 2308. Plaintiff opposes defendant's motion for reargument, contending, inter alia, that by making the current motion, defendant has waived personal delivery of the December 11, 2017 order and that Justice Asher did not overlook or misapprehend any relevant facts or misapply the law. Plaintiff requests that upon denial of defendant's motion, she be "given 20 days to purge herself of the contempt after the order deciding this motion is served pursuant to CPLR 2103(c)." Neither plaintiff pro se nor defendant has made any serious effort to offer case law in support of their respective contentions.
In her earlier motion to quash the information subpoena, defendant presented many of the same contentions that she now seeks to advance with respect to the breadth of the subpoena, the sufficiency of its service upon her and what she claimed was its improper purpose. In his March 15, 2017 decision and order, Justice Asher rejected those arguments and denied defendant's motion to quash, holding that while "a court has the power ‘to control and regulate the enforcement of a money judgment under article 52 to prevent "unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice to any person," ’ " the defendant had "failed to establish that the information subpoena was not properly served, that the questionnaire seeks irrelevant information or that the requests for financial information and records contained therein are overbroad and or unduly burdensome ...." (Decision and Order at 2, citations omitted). Defendant neither challenged that determination nor complied with information subpoena. Although in his subsequent, June 2, 2017, decision and order, Justice Asher denied plaintiff's first motion to hold defendant in contempt for her ongoing failure comply with the subpoena, he did so not on substantive grounds, but because plaintiff's counsel had failed to include with the motion documentation that Justice Asher determined to be prerequisite to the granting of the relief sought. Plaintiff's subsequent motion to punish defendant for contempt, dated June 20, 2017, provided the proof that had been omitted from plaintiff's earlier motion, and in his decision and order dated December 11, 2017, Justice Asher granted the relief plaintiff sought, holding, as noted above, that defendant was "guilty of contempt by reason of her failure to respond to an information subpoena served upon her on October 18, 2016, and that such conduct was calculated to and did impair, impede and prejudice plaintiff's rights and remedies ...." (Citation omitted). Pursuant to Judiciary Law & 773, Justice Asher imposed a fine of $250.00, payable to plaintiff's attorney within 20 days after personal delivery of the order, and further provided that defendant could purge herself of the contempt within 20 days after personal service of the order "(a) by paying the sum fined or appearing before the court and demonstrating that she is unable to pay the fine, and (b) by providing written responses to the information subpoena."
Although the defendant contends, once again, that the information subpoena and related papers were not "properly" served upon her, she fails to offer any legal basis for that assertion, offers no proof that the service was effected contrary to the requirements of the CPLR and makes no showing that the court overlooked such proof or misapprehended the facts or law or mistakenly arrived at its earlier decisions denying her motion to quash the subpoena on that ground (among others) and granting plaintiff's contempt motion. In any event, although CPLR & 5224(a)(3) permits "an information subpoena, accompanied by a copy and original of written questions and a prepaid, addressed return envelope," to be served by registered or certified mail, return receipt requested, such a subpoena may, like any other subpoena, be served in the same manner as a summons (see Carl v. Moyer , 63 Misc 2d 1052, 1053 [Sup. Ct. Onondaga County 1970] ; CPLR 2303(a) ), and where, as here, the registered or certified mailing of the information subpoena has been returned by the Postal Service marked "unclaimed," reservice in the same manner as a summons is appropriate ( Carl v. Moyer , supra , 63 Misc 2d at 1053 ). Notably, defendant does not dispute that she received the subpoena (see Weiss v. Bretton Woods Condominium II , supra ). Further, it is not disputed that she has been in receipt of those papers at least since October 24, 2016, and of the March 15, 2017 decision and order denying her motion to quash or modify the subpoena, since at least April of 2017, when she received a copy of that decision and order with notice of entry. (See generally James v. Powell , 32 AD2d 517 [1st Dept 1969].)
With respect to defendant's contention that the fine levied by Justice Asher, $250.00, exceeds the maximum fine permitted by CPLR 2308, $50.00, it should be noted that pursuant to Judiciary Law & 770, where, as here, the court has found that the contemnor's conduct "was calculated to, or actually did defeat, impair, impede or prejudice the rights or remedies of a party to an action ... brought in the court, or before the judge or referee; the court, judge, or referee must make a final order directing that [the contemnor] be punished by fine, imprisonment, or both, as the nature of the case requires" (id. , first paragraph, emphasis added), and that pursuant to Judiciary Law & 773, where it has not been shown that actual loss or injury has been caused to the moving party by the contemnor's misconduct, the court may impose "a fine which does not exceed the complainant's costs and expenses, plus an additional $250" ( Berkowitz v. Astro Moving & Storage, Co., 240 AD2d 450, 452 [2d Dept 1997] ). The opportunity remains for defendant to purge herself of the contempt by, within 20 days after personal service delivery to her of a copy of this decision and order, complying with the information subpoena and, in addition, either paying the sum fined as directed by Justice Asher or demonstrating to the court that she is unable to pay the fine.
For all of the foregoing reasons, defendant's motion for reargument is denied. Plaintiff is directed to cause personal service of a copy of this order, with notice of entry, together with a copy of the December 11, 2017 order herein (Asher, J.), with notice of entry, to be made upon defendant by personal delivery or by any other method of personal service permitted by CPLR 308, on or before September 28, 2018. Defendant, within 20 days after personal service of this order, with notice of entry, together with a copy of the court's December 11, 2017 decision and order (Asher, J.), with notice of entry, has been made upon her as directed in the foregoing decretal paragraph, shall pay the sum fined, $250.00, to plaintiff's attorney. Defendant may, within 20 days after personal service upon her of this order, with notice of entry, and of the December 11, 2017 decision and order, with notice of entry, purge herself of the contempt by (a) paying to plaintiff's attorney the $250.00 sum fined or by appearing before the Court and demonstrating that she is unable to pay the fine, and (b) providing written responses to the information subpoena. In the event defendant fails to purge herself of the contempt within the time period afforded for her to do so as set forth herein, plaintiff may, upon a certified copy of this order and of the December 11, 2017 decision and order, together with proof by affidavit that more than 20 days have elapsed since personal service thereof upon defendant and that defendant has not purged herself of the contempt by satisfying the conditions set forth herein for doing so, plaintiff may make an application without notice for a warrant directing the sheriff or other enforcement officer of any jurisdiction in which defendant may be found, to arrest her forthwith and bring her before the court, or judge thereof, to be committed or for such other disposition as the court in its discretion shall direct.
The foregoing constitutes the decision and order of the court.