Wenig Saltiel, LLP v. Bozeman

Wenig Saltiel, LLP v Bozeman (2022 NY Slip Op 50939(U)) [*1] Wenig Saltiel, LLP v Bozeman 2022 NY Slip Op 50939(U) [76 Misc 3d 135(A)] Decided on September 23, 2022 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on September 23, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, CHEREÉ A. BUGGS, JJ 2022-71 K C Wenig Saltiel, LLP, Appellant, against Linda Bozeman, Respondent. Wenig Saltiel, LLP (Charles Loveless and Jeffrey Saltiel of counsel), for appellant. Linda Bozeman, respondent pro se (no brief filed). Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered March 28, 2018. The order denied plaintiff's unopposed motion to hold defendant in civil contempt and for other relief. ORDERED that the order is reversed, without costs, plaintiff's motion to hold defendant in civil contempt is granted and the matter is remitted to the Civil Court for further proceedings in accordance with the decision herein. In this small claims action for attorney's fees, on September 14, 2016, following an inquest, the Civil Court (Harriet L. Thompson, J.) awarded plaintiff a judgment in the principal sum of $5,000. Plaintiff subsequently served defendant with a subpoena for taking a postjudgment deposition with restraining notice, commanding defendant to appear at plaintiff's office on January 8, 2018 and to bring with her enumerated documents pertaining to her assets and income, and informing defendant that her failure to comply with the subpoena was punishable as a contempt of court (see CPLR 5223, 5224). Defendant failed to appear, following which plaintiff moved by order to show cause to punish defendant for contempt by fine or imprisonment, to order defendant to appear for a deposition and to pay plaintiff the expenses of a transcript and filing fees, which expenses plaintiff had incurred by reason of defendant's failure to appear for a deposition. Plaintiff's motion contained a warning, written in bold, uppercase letters, that the purpose of the hearing was to punish defendant for contempt. The court set the [*2]hearing for March 26, 2018 at the courthouse and mandated the time and method for serving defendant with the order to show cause. Plaintiff served defendant with the order to show cause in accordance with the court's requirements. Defendant failed to submit papers in opposition thereto or to appear for the hearing. Following the hearing, the Civil Court denied plaintiff's motion on the ground that, "The basis of the order to show cause is a subpoena which was not so ordered." Plaintiff appeals from the order. Attorneys are "officers of the court" for the purpose of issuing subpoenas (see Matter of Ling v Sans Souci Owners Corp., 187 AD3d 755, 756 [2020]; see also Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C2308:1), and the subpoenas attorneys issue constitute "judicial subpoenas" within the meaning of CPLR 2308 (a) (see Douglas Elliman, LLC v TWP Real Estate, LLC, 189 AD3d 614, 614 [2020]). The disobedience of a postjudgment subpoena that is issued by an attorney is punishable by contempt without first requiring a plaintiff to make a motion to compel or otherwise have the subpoena "so-ordered" by the court (see Cadlerock Joint Venture, L.P. v Patterson, 199 AD3d 557, 558 [2021]; see also Bankers Trust Co. v Braten, 194 AD2d 378 [1993]). Plaintiff's motion to punish defendant for contempt complied with the notice requirements of Judiciary Law § 756. Plaintiff demonstrated that the judicial subpoena, clearly expressing an unequivocal mandate, had been in effect; that the subpoena had been disobeyed; that defendant had been served with the subpoena and thus had knowledge of its terms; and that plaintiff had been prejudiced by defendant's failure to appear at the postjudgment deposition (see El-Dehdan v El-Dehdan, 26 NY3d 19, 28-29 [2015]; Madigan v Berkeley Capital, LLC, 205 AD3d 900, 905 [2022]; Zeidman v Zeidman, 202 AD3d 893, 894 [2022]; Matter of Binong Xu v Sullivan, 155 AD3d 1031, 1032 [2017]). The burden then shifted to defendant to refute that showing, or to offer evidence of a defense such as an inability to comply with the order (see El-Dehdan v El-Dehdan, 26 NY3d at 35; Matter of Mendoza-Pautrat v Razdan, 160 AD3d 963, 964 [2018]; Mollah v Mollah, 136 AD3d 992, 993 [2016]). Defendant, who defaulted on the motion, failed to meet that burden. In this circumstance, we conclude that the Civil Court improvidently exercised its discretion in denying plaintiff's motion, and that it should have granted the motion. Accordingly, the order is reversed, plaintiff's motion to hold defendant in civil contempt is granted and the matter is remitted to the Civil Court to impose an appropriate sanction on defendant and to direct her to appear for a deposition on a date certain for further proceedings. ALIOTTA, P.J., WESTON and BUGGS, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: September 23, 2022