Arko MB LLC v O'Neel

Arko MB LLC v O'Neel 2012 NY Slip Op 04107 Decided on May 29, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 29, 2012
Friedman, J.P., Sweeny, Renwick, Freedman, Abdus-Salaam, JJ.
7782 601022/09

[*1]Arko MB LLC, Plaintiff-Appellant,

v

Robert W. O'Neel, III, et al., Defendants-Respondents.




Law Offices of Neil Pasmanik, Brooklyn (Neil Pasmanik of
counse), for appellant.

Order, Supreme Court, New York County (Debra A. James, J.), entered September 20, 2011, which denied plaintiff judgment creditor's motion pursuant to CPLR 5251 to hold individual defendant judgment debtor in contempt of court, unanimously affirmed, without costs.

Plaintiff failed to demonstrate with clear and convincing evidence that defendant had refused or willfully neglected to obey the subpoenas (see CPLR 5251; Gray v Giarrizzo, 47 AD3d 765, 766 [2008]; see generally Pereira v Pereira, 35 NY2d 301, 308 [1974]). Although defendant's answers to plaintiff's questions in the deposition could have been more detailed, defendant provided substantial information on his income and holdings. Moreover, some of the questions involved complex financial transactions that occurred approximately four years before the deposition. As such, it cannot be said that
defendant's answers were evasive or nonresponsive (cf. Quantum Heating Servs. v Austern, 100 AD2d 843, 844 [1984]). Nor did plaintiff show, by clear and convincing evidence, that the documents it sought existed and were in defendant's possession at the time the subpoenas were served (see Gray, 47 AD3d at 766; see also Tener v Cremer, 89 AD3d 75, 78 [2011]).

Finally, we note that plaintiff may seek a further EBT of defendant.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 29, 2012

CLERK