Opinion
Index No. 160250/2019 Motion Seq. No. 005
02-02-2023
JOSEPH H. WEST, Plaintiff, v. PAUL LO DUCA, Defendants.
Unpublished Opinion
PART IAS MOTION 56EFM
MOTION DATE 11/30/2022
DECISION AND ORDER
HON. JOHN J. KELLEY, JUDGE
The following e-filed documents, listed by NYSCEF document number 62, 63, 64, 65, 66, 67, 68, 69, and 70 (Motion 003) COMPEL COMPLIANCE WITH INFORMATION were read on this motion to/for SUBPOENA/CONTEMPT/ATTORNEYS' FEES
In this action to recover damages for defamation, the plaintiff moves pursuant to CPLR 5223 and 2308(b) to compel the defendant to comply with an information subpoena personally delivered to him on September 2, 2022, and for an award of attorneys' fees. The defendant does not oppose the motion. The motion is granted to the extent that (a) the defendant is held in civil contempt, and if he does not purge the contempt by appearing for a deposition on March 21, 2023, at 10:00 a.m., or at any later date and time agreed to by the plaintiff, and thereupon comply with the subpoena by then giving testimony at the offices of the plaintiff's counsel, or at any other place of the plaintiff's choosing, or remotely if the plaintiff consents to conduct the deposition remotely, the court shall schedule a hearing to determine the penalty for the contempt and (b) the plaintiff shall be awarded attorneys' fees incurred in making this motion. The motion is otherwise denied.
After the defendant defaulted in appearing in this action, the court conducted an inquest. By decision and order after inquest dated April 9, 2021, as amended April 13, 2021, this court concluded that the plaintiff was entitled to recover the sum of $500,000 from the defendant. The court directed the Clerk of the court to enter judgment against the defendant in the principal amount of $500,000, plus statutory prejudgment interest at the rate of 9% per annum from July 8, 2020. On September 2, 2021 and, thus, prior to the entry of the judgment, the plaintiff served an information subpoena upon the defendant. By order dated October 20, 2021, this court denied the plaintiff's motion to compel the defendant to comply with that subpoena or, alternatively, to hold him in contempt, on the ground that CPLR 5223 is only available as a post judgment remedy. On November 5, 2021, the court entered judgment in favor of the plaintiff and against the defendant in the total sum of $561,049.52. On September 2, 2022, the plaintiff served a new subpoena upon the defendant by personal delivery, directing him to appear at the offices of the plaintiff's attorney on October 4, 2022. The defendant failed to appear on that date. This motion ensued.
CPLR 5223 provides that
"[a]t any time before a judgment is satisfied or vacated, the judgment creditor may compel disclosure of all matter relevant to the satisfaction of the judgment, by serving upon any person a subpoena, which shall specify all of the parties to the action, the date of the judgment, the court in which it was entered, the amount of the judgment and the amount then due thereon, and shall state that false swearing or failure to comply with the subpoena is punishable as a contempt of court."
That statute "speaks to the production of documents and materials relevant to the enforcement of the judgment" (Matter of Cave Cr. Invs., Inc. v Urban FT Group, Inc., 176 A.D.3d 573, 573 [1st Dept 2019]). CPLR 5223 provides a judgment creditor the right to subpoena a party or nonparty witness to compel disclosure relevant to the satisfaction of the judgment (see generally Matter of B&M Kingstone, LLC v Mega Inti. Commercial Bank Co., Ltd., 131 A.D.3d 259, 266 [1st Dept 2015]).
The definition of a "judicial subpoena" includes subpoenas that are made returnable before the court (see Irizarry v New York CityPolice Dept., 260 A.D.2d 269, 271 [1st Dept 1999]; Matter of Cambridge Packing Co, Inc. v LaJaunie, 2019 NY Slip Op 30689[U], *3, 2019 NY Mise LEXIS 1210, *3-4 [Sup Ct, N.Y. County, Mar. 18, 2019] [Kelley, J.]; 4720 15th Ave., LLC v Jacobson, 2017 NY Slip Op 30318[U], *3-4, 2017 NY Mise LEXIS 615, *4 [Sup Ct, N.Y County, Feb. 17, 2017]; Lyon Financial Services v Pinto Trading Co., 2009 NY Slip Op 51783[U], *2-3, 24 Mise 3d 1237[A], 2009 NY Mise LEXIS 2164, *5-6 [Sup Ct, Kings County, Aug. 17, 2009]). Although the subject subpoena was not returnable in court, it nonetheless must be characterized as a judicial subpoena, inasmuch as the definition of that term also
"embraces subpoenas issued by an officer of the court (such as an attorney) at any stage of a judicial proceeding, regardless of whether the subpoena was specifically returnable in court"(Cadlerock Joint Venture, L.P. v Patterson, 199 A.D.3d 557, 558 [1st Dept 2021]; see Douglas Elliman, LLC v TWP Real Estate, LLC, 189 A.D.3d 614, 614 [1st Dept 2020]; see also Matter of Ling v Sans Souci Owners Corp., 187 A.D.3d 755 [2d Dept 2020]). Hence, CPLR 2308(b)(1), which applies only to nonjudicial subpoenas, and requires that a motion to compel compliance be made prior to seeking a contempt ruling, is not applicable here (see Douglas Elliman, LLC v TWP Real Estate, LLC, 189 A.D.3d at 614; cf. Reuters, Ltd. v Dow Jones Telerate, Inc., 231 A.D.2d 337, 341 [1st Dept 1997] [applying that rule to enforcement of nonjudicial subpoena; Dias v Consolidated Edison Co. of New York, Inc., 116 A.D.2d 453, 454 [1st Dept 1986] [same]), and that branch of the motion seeking relief pursuant to that section must be denied. Rather, upon the defendant's failure to comply with the information subpoena issued by the plaintiff's attorney, the plaintiff was entitled immediately to move to hold the defendant in civil contempt (see Cadlerock Joint Venture, L.P. v Patterson, 199 A.D.3d at 558; Douglas Elliman, LLC v TWP Real Estate, LLC, 189 A.D.3d at 614).
"In order to find that contempt has occurred in a given case, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. It must appear, with reasonable certainty, that the order has been disobeyed" (Matter of McCormick v Axelrod, 59 N.Y.2d 574, 583 [1983]; see Judiciary Law § 753[A][3]). The movant also must establish that the party to be held in contempt engaged in conduct that was calculated to and actually did defeat, impair, impede, and prejudice the movant's rights (see 450 West 14th St. Corp, v 40-56 Tenth Avenue, LLC, 15 A.D.3d 166, 167 [1st Dept 2005]; see also Dietrich v Michii, 57 A.D.3d 1527, 1527 [4th Dept 2008] [applying rule to judgment debtor who refused to comply with prior order]). "[W]ilfulness is not an element of civil contempt" (El-Dehdan v El-Dehdan, 26 N.Y.3d 19, 35 [2015]). A civil contempt must be proven by clear and convincing evidence (see Classe v Silverberg, 168 A.D.3d 603, 604 [1st Dept 2019]). CPLR 2308(a) provides that the "[failure to comply with a subpoena issued by a judge, clerk or officer of the court," such as an attorney, "shall be punishable as a contempt of court" (see Cadlerock Joint Venture, L.P. v Patterson, 199 A.D.3d at 558) in the same manner as an order expressing an unequivocal mandate (see Wenig Saltiel, LLP v Bozeman, 76 Mise 3d 135[A], 2022 NY Slip Op 50939[U], *2, 2022 NY Mise LEXIS 4993, *3 [App Term 2d Dept, 2d, 11th &13th Jud Dists, Sep. 23, 2022]).
The plaintiff has established by clear and convincing evidence that the defendant failed to comply with the judicial subpoena that was personally delivered to him, and that the contempt impaired and prejudiced the plaintiff's rights. Hence, the defendant must be held in civil contempt. The defendant may purge his contempt by appearing for a deposition as set forth herein.
Although CPLR 2308(a) does not expressly provide for an award of attorneys' fees incurred in making a successful contempt motion in connection with a judicial subpoena, the court is authorized by Judiciary Law § 773 to award such fees in connection with a motion pursuant to CPLR 2308(a) (see Impact CarPark v Mutual Redevelopment Houses, 2021 NY Slip Op 30950[U], *4-5, 2021 NY Mise LEXIS 1316, *5-6 [Sup Ct, N.Y. County, Mar. 26, 2021]). A contemnor must also pay a penalty of $150 to a successful movant (see CPLR 2308[a]).
In light of the foregoing, it is ORDERED that the plaintiff's motion is granted to the extent that
(a) the defendant is held in civil contempt and, if he does not purge the contempt by appearing for a deposition on March 21, 2023, at 10:00 a.m., or at any later date and time agreed to by the plaintiff, and thereupon comply with the subpoena by then giving testimony at the offices of the plaintiff's counsel, or at any other place of the plaintiff's choosing, or remotely if the plaintiff
consents to conduct the deposition remotely, the court shall schedule a hearing to determine the penalty for the contempt; and
(b) the plaintiff shall be awarded his reasonable attorneys' fees incurred in making the instant motion upon submitting to the court an affirmation of attorneys' services,and the motion is otherwise denied; and it is further, ORDERED that, on or before March 21, 2023, the defendant shall pay the plaintiff the sum of $150.00 as and for a statutory penalty; and it is further;
ORDERED that, on or before February 17, 2023, the plaintiff shall serve a copy of this order with notice of entry upon the defendant either by personal delivery or, if the email address is still active, via email at Loduca@barstoolsports.com.
This constitutes the Decision and Order of the court.