Opinion
117395/09.
July 22, 2011.
DECISION/ORDER
Recitation, as required by CPLR § 2219(a), of the papers considered in Upon the foregoing papers the decision and order of the court is as follows:
PAPERS NUMBERED
Def's n/m [compel] w/ZL affirm, exhs...........................1 Pltf's opp w/MS affid, exhs....................................2 Def's reply w/ZL affirm........................................3Defendant/third-party plaintiff, Liberty Mutual Insurance Company ("LMIC"), moves for an order pursuant to CPLR § 5251 holding plaintiff/third-party defendant, Morton Schneider ("Schneider"), in contempt for failure to respond to an Information Subpoena and Questionnaire. Schneider, who is self-represented, has filed opposition to the motion. In this court's prior decision/order, LMIC's motion for summary judgment was granted dismissing the complaint and LMIC was granted summary judgment on the second count of the third-party complaint, against Schneider, in the amount of $10,938.19 plus statutory costs and disbursements. The first count of the third-party complaint was dismissed. Decision/Order, Hon. Judith J. Gische, 1/5/11. LMIC now seeks to hold Schneider in contempt and compel him to respond to the Information Subpoena and Questionnaire so that it may obtain information regarding Schneider's assets and property and be able to enforce the judgment.
Schneider does not dispute that he received the subpoena and failed to answer. Rather, Schneider argues that he disagrees with the Court's prior decision and addresses the underlying merits of that decision.
Discussion
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 N.Y.2d 574, 583 amended 69 N.Y.2d 652 (1983); Puro v. Puro, 39 A.D.2d 873 (1st Dept. 1990). 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 A.D.2d 316 (1st Dept. 1994). A party seeking contempt must show that there are no alternative effective remedies available. Farkas v. Farkas, 201 A.D.2d 440 (1st Dept. 1994) (remedies). Under CPLR § 5222 (b), a party has the right to obtain financial disclosure to aid it in the recovery of the money it is due and its collection efforts. CPLR § 5251; Gabor v. Renaissance Associates, 170 A.D.2d 390 (1st Dept. 1991); See also Skylake State Bank v. Solar Heat and Insulation, 148 Misc.2d 559 (Sup Ct., N.Y. Co. 1990). 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).
LMIC has established that it needs access to the requested information so that it may enforce its judgment. Without a response from Schneider, LMIC has no other source for the necessary information. It is undisputed that LMIC served the subpoena on Schneider on February 18, 2011, followed by a letter dated March 10, 2011; neither of which Schneider responded to.
LMIC has established that Schneider's disobedience of the subpoena has defeated, impaired, impeded or prejudiced its right to ascertain information about Schneider's financial resources. Judiciary Law § 753 [a]; Farkas v, Farkas, 209 A.D.2d 316 (1st Dept. 1994); Great Neck Pennysaver v. Central Nassau Publications, 65 A.D.2d 616 (2d Dept. 1978). Finally, LMIC has shown that without the information, Schneider cannot easily enforce its judgment. Therefore, LMIC's motion for contempt is granted. While Schneider may be upset by the judgment entered against him, such arguments cannot be addressed in response to a contempt motion. His redress on the merits was to file an appeal.
Schneider is, therefore, in civil contempt. The court will, however, order Schneider to respond to the information subpoena within TWENTY DAYS of being served with a copy of this Order. This is a FINAL opportunity to PURGE the contempt. If Schneider fails to comply with this PURGE, the Clerk shall enter a money judgment against Schneider in the sum of $500, starting from twenty days following service of a copy of this order and subpoena.
Legal Fees
Generally, each party to a litigation is required to pay its own legal fees, unless there is a statute or an agreement providing that the other party shall pay same. AG Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1 (1986). There is no provision within Article 52 allowing LMIC to recover its legal fees. Furthermore, there is no agreement providing that Schneider shall pay LMIC's attorneys fees. Consequently, each side is responsible for its own legal fees.
Conclusion
In accordance herewith, it is hereby:
ORDERED that LIBERTY MUTUAL INSURANCE COMPANY's motion for an order adjudicating MORTON SCHNEIDER in contempt is hereby GRANTED; and it is further
ORDERED that MORTON SCHNEIDER is held in civil contempt. MORTON SCHNEIDER is directed to respond to the subpoena within TWENTY DAYS of being served with a copy of this Order and the subpoena itself. This is a FINAL opportunity to PURGE the contempt; and it is further
ORDERED that if MORTON SCHNEIDER fails to comply with this PURGE, as punishment, the Clerk shall enter a money judgment against MORTON SCHNEIDER in the sum of $500, starting from twenty days following service of a copy of this order and subpoena; and it is further
ORDERED that any relief not expressly addressed has nonetheless been considered and is hereby denied; and it is further
ORDERED that this shall constitute the decision and order of the Court.