Trump Taj Mahal Assoc. v Hara

[*1] Trump Taj Mahal Assoc. v Hara 2009 NY Slip Op 50727(U) [23 Misc 3d 1113(A)] Decided on February 19, 2009 Supreme Court, Kings County Rivera, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 19, 2009
Supreme Court, Kings County

Trump Taj Mahal Associates, Plaintiffs,

against

Hazkel Hara, Defendant.



5980/06



Counsel for Plaintiff:

Kazlow and Kazlow

212-947-2900

Counsel for Defendant:

Pro se

Francois A. Rivera, J.

Plaintiffs have resubmitted to this court a proposed "Warrant to Punish for Contempt, and Arrest and Produce" (hereinafter the warrant document) for signature. The court notes that the warrant document does not contain an affidavit of service or any indication that it was filed with the court's motion support office.

The warrant document contains a supporting affirmation of plaintiff's counsel and three annexed exhibits. The first exhibit is a prior order of this court dated December 11, 2007. The second exhibit is a notice of entry of the aforementioned December 11, 2007 order. The third exhibit is a decision of this court dated August 4, 2008, which denied plaintiff's previous request for a "Warrant to Punish for Contempt, and Arrest and Produce for failure to comply with the requirements of CPLR §2214."

The instant application stems from an Order to Show Cause, dated February 7, 2007, brought by the plaintiff, for an order to punish defendant Hazkel Hara, and non-party Arlette Hara for contempt (hereinafter the Haras). On March 9, 2007, at the scheduled court date for oral [*2]argument of the order to show cause neither Hazkel Hara nor Arlette Hara appeared or filed opposition to the motion. On March 9, 2007, this court granted plaintiff's application and directed the plaintiff to settle an order on notice. For the reasons sets forth below, the court's prior order granting plaintiff's order to show cause, dated February 7, 2007, is vacated and denied without prejudice.

The original order to show cause required "personal delivery" of a copy of the order and the papers upon which it is based, on each of the Haras by February 23, 2007. Upon review of the affidavit of service of said order to show cause, the court notes that service of the order to show cause was made upon Hazkel Hara pursuant to CPLR §308 (2); to a person of suitable age and discretion. Service according to CPLR §308 (2) is deemed complete 10 days after filing of the affidavit of service. The affidavit of service was stamped "filed" by the Kings County Clerk on February 26, 2007. Therefore, Hazkel Hara was not served by February 23, 2007 since service was not complete until early March of 2007. Because service upon the defendant Hazkel Hara did not comply with the directions of the court, either by method or by time, the court never obtained personal jurisdiction over her.

With regard to the non-party, Arlette Hara, there is no record in the county clerk file of the service upon her. Even assuming she was served by personal delivery by February 23, 2007, there was a more glaring problem with the plainitff's application. A proceeding to hold a non-party in contempt must be brought by a special proceeding. The punitive nature of a contempt proceeding which can include a fine and/or imprisonment, compels strict adherence to the service requirements regarding non-parties. Therefore, the non-party is entitled to the same level of notice required to institute any special proceeding against any new party, i.e., by service of a notice of petition in the same manner as a summons in an action (see CPLR §403 [c][d]). Simply stated, the requirement for initiating a special proceeding provides due notice of the nature of the action and ensures that the non-party is afforded due process (Wenig Saltiel, & Greene, 19 Misc 3d 1112 [A]). Where a contemnor is not a party to the underlying action, the contempt proceeding is viewed as a separate, special proceeding, guided by the procedural rules governing special proceedings (See CPLR §401). Therefore, the order to show cause against non-party Arletee Hara was improper because it used the same index number as the action against Harkel Hara and was not commenced as a separate and distinct special proceeding.

A trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party, or is inconsistent with the decision upon which it is based (Adams v. Fellingham, 52 AD3d 443 [2nd Dept 2008]) citing Kiker v. Nassau County, 85 NY2d 879, 881 [1995]). The court finds that the plaintiff is not prevented from seeking the same relief again. Therefore, there is no problem with the court vacating its prior order since it does not affect a substantial right of a party.

The court finds that plaintiff did not obtain personal jurisdiction over the alleged contemnors in the original order to show cause dated February 7, 2007. Therefore, the punishment order, dated December 11, 2007, is vacated and the instant application for a Warrant to Punish for Contempt, Arrest, and Produce is denied.

____________________________

J.S.C.