Opinion
61816/01.
Decided March 1, 2004.
Goldman, Firer Altesman, New York, NY, Attorney for Plaintiff.
The instant issue before the Court in Special Term Part 36 is the authorization of a warrant of arrest predicated on defendant's purported disobeyance of an information subpoena duly ordered by the Court. The Court not only denies plaintiff's request for a warrant of arrest to be issued in this matter but, sua sponte, vacates the order and final order of contempt previously approved against defendant upon the grounds that plaintiff's motion is precipitous, and further, that defendant's due process rights have been violated in that the plaintiff has failed to show that the manner of service it employed was justified and reasonably calculated to give the defendant notice.
Procedure:
A supplementary proceeding pursuant to CPLR § 5224 was initiated by the purported service of an information subpoena upon Allen Dubra, an officer of the judgment debtor. The subpoena was served personally upon a person of suitable age and discretion at 138-81 Francis Lewis Boulevard, after which same was mailed by first class mail to Dubra at the same address. Upon default, plaintiff moved to punish Dubra for contempt. Said motion was served by first class mail upon Dubra at both 138-81 Francis Lewis Blvd. and 141-31 Hook Creek Blvd. On June 19, 2003, plaintiff's motion was granted on default, and plaintiff was directed to submit a long form order. Plaintiff submitted a final order to punish defendant for contempt, which included an immediate fining order, and purportedly served defendant. Service was made by delivering a true copy of the final order to a co-worker of defendant at 141-31 Hook Creek Blvd., with a follow-up mailing by first class mail to the same address. Upon defendant's default, plaintiff submitted a warrant of arrest for the Court to "so order". No explanation for the two different addresses nor the reasons for service at either address was presented. The court is bewildered by the different addresses and lapse in service to both, which is neither explained by the plaintiff nor by plaintiff's moving papers.
The Law:
CPLR § 5224(a)(3) provides that service of an information subpoena "may be made by registered or certified mail, return receipt requested." Since refusal or neglect is punishable as a contempt of court pursuant to CPLR § 5251, courts have held that a bare affidavit of service averring that the subpoena was served by certified mail, although facially valid, is insufficient to punish the alleged recipient for contempt. ( See Mailman v. Belvechhio, 195 Misc2d 275 (App Term 2nd Dept 2002).
In Mailman, the Appellate Term held that "plaintiff's unopposed motion was properly denied inasmuch as plaintiff did not establish that the envelope containing the information subpoena was signed for by defendant or anyone acting on her behalf, or that it was even received [citations omitted]." ( Id.; see also Metro. Life Ins. Co. v. Young, 157 Misc 2d 452 [Civ Ct, NY County 1993].) The obligation to answer an information subpoena ripens only upon receipt and the answers must be returned "within seven days of receipt." CPLR § 5224(a)(3). Since the plaintiffs in Mailman could not point to any date of receipt, the seven-day period never began to run; consequently, the defendants could not properly be punished for contempt.
CPLR § 5224 is not the only method of serving an information subpoena, however, as plaintiff correctly points out in its moving papers. An information subpoena may also be served pursuant to CPLR § 2303, namely, in the same manner as a summons and complaint pursuant to any of the four methods of delivery permitted by CPLR § 308. Where, as here, the subpoena is served in the same manner as a summons under CPLR § 308(2), service is completed by delivering the subpoena to a person of suitable age and discretion at the defendant's dwelling place, place of business, or usual place of abode, and by mailing a copy by first class regular mail to the defendant's business or last-known residence. The delivery and the mailing must occur within 20 days of each other, and service is deemed complete 10 days after whichever act (the delivery or the mailing) occurred last. ( See Weininger v. Sassower, 204 AD2d 715 [2nd Dept 1994].)
In Mailman, supra, the Information Subpoena was purportedly served only by certified mail with no evidence of receipt of the document and, given the consequence of civil commitment for failure to provide the information requested, the court found that the plaintiff in that instance must prove receipt. However, when making service pursuant to CPLR § 308, the Court presumes delivery and therefore receipt. ( Facey v. Heyward, 244 AD2d 452 [2nd Dept 1997]; Riverhead Sav. Bank v. Garone, 183 AD2d 760, 762 [2nd Dept 1992].) Mere denial of receipt, without more, does not rebut the presumption. ( Engel v. Lichterman, 95 AD2d 536, 538 [2nd Dept 1983] aff'd 62 NY2d 943 (1984); Matter of Rosa v. Bd. of Examiners, 143 AD2d 351 [2nd Dept 1988].) Plaintiff argues that the courts have gone too far in requiring personal delivery and suggests, without expressly stating, that Mailman is inapposite to the case at bar.
The court need not go that far, however, as plaintiff's purported service in the instant case is deficient in two regards. The first deficiency is the confusion over the defendant's address. Here, service was purportedly made in accordance with CPLR § 308(2). As stated above, there is a presumption of receipt of a subpoena served in accordance with CPLR § 308(2); however, such presumption cannot attach where there is ambiguity regarding the defendant's proper address. ( See Foster v. Cranin, 180 AD2d 712 [2nd Dept 1992] [dismissing complaint mailed to incorrect and incomplete address]; ELRAC v. Booker, 194 Misc 2d 251 [Civ Ct, Queens County 2002] [failing to include zip code precluded entry of default judgment against defendant]; N.Y. Hous. Auth. v. Fountain, 172 Misc 2d 784 [Civ Ct, Bronx County 1997] [denying application for default judgment where petitions were not mailed to defendant's complete address, including zip code].) In affirming the lower court's dismissal of the complaint, the Appellate Division in Foster stated that "CPLR § 308(2) is to be strictly construed" (citing Macchia v. Russo, 67 NY2d 592.) Thus a complaint which is mailed to an incorrect and incomplete address must be dismissed for improper service. In these cases, due process mandated that only service which comported with the letter of the statute could be used as a basis for enforcement of monetary judgments. It would assuredly be an even more egregious violation of defendant's due process rights to uphold service in the instant case, where imprisonment would result if a contempt order were to issue. As noted in Metro. Life Ins. Co. v. Young, 157 Misc 2d 452 (Civ Ct, NY County 1993), contempt is "the only extant civil remedy which provides for arrest in New York . . . . and . . . . given the personal liberty interest at stake . . . judicial scrutiny is especially important on default, when there is no adversarial process to expose deficient proof."
Additionally, plaintiff's motion to punish for contempt is deficient in that it is premature. Here, the Final Order was personally served in accordance with CPLR § 308(2) on September 2, 2003. However, as stated above, service under CPLR § 308(2) also mandates that a copy of the process be mailed by first class regular mail to the defendant's business or last-known residence. According to the affidavit of service, the mailing occurred on September 17, 2003; thus, service was not deemed complete until ten days later — September 27, 2003. Plaintiff's attorney incorrectly asserts in his affirmation that service was completed on the delivery on September 2, 2003, when in fact service is not deemed to have been completed until 10 days after the subsequent mailing, namely, on September 27th. Thus, plaintiff's motion, dated September 26, 2003, is premature and must be denied.
In light of the confusion over the proper address for Dubra and the facial prematurity of the motion, plaintiff's application must be denied. In the instant matter, given these infractions, the Court is simply without jurisdiction to enter any contempt order.
Accordingly, plaintiff judgment creditor's request for a warrant of arrest is denied and the prior final order issued upon plaintiff's motion and defendant's default is vacated.