Kudelka v Brooks

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Kudelka v Brooks 2012 NY Slip Op 31431(U) May 25, 2012 Supreme Court, New York County Docket Number: 106267/10 Judge: Judith J. Gische Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. -- SCANNED ON 513012012--~ [* 1] -- I I I 1 f * I i P 1 I 0' ILEQ 'D MAY 30 2012 . . FlCE [* 2] SUPRUMP COURT or T H I STATE Or N W YQRK E COUNW OF N W Y O N PART 10 E D~claKml ORDER Uoudmlla Kudelka and Flow Brandesign, LLC, Index No.: i08287/10 Seq. No.: 004 PlairltHB, -against- PRE8ENK J.S.C. Piem Brooks and Pet Warehouse DfstrIbutors Inc. , FILED Defendants. MAY S O 2012 X Recitation, as ntquid by CPLR Q 2219 [a] of the papers considerad In the review ofW YORK (these) mdlon(er): COUNTY CLERK S OFFICE Papen Numkmd PltPs OSC (Contempt) w/OW affirm, exhs ...................... 1 A M . of Service .......................................... 2 ProposadWarrant ........................................ 3 ~ Upon the tbmgoing papars, the decision and order of the coud is as h h w s : This is plaintiff smotionfor an order adjudicatingdefendant Plum Brook8 (.Bmolce~ in contempt for his failure to cornpty with the Subpoena to Take DeposlUon of Judgment Debtor ( subpoena ) that plaintm 8e)tved on him. PlslirttlfF obbained a manay judgment against Brooks ( moneyJudgment )that he awes,but failed to pay. Plaintiff Is attempting to enforoe and satisfy this money judgment. CPLR &#&a&, 9 6226; w a r v. 170 A.D.2d 390 (ld l0Ql). Dept. Although plaintiff has filed proof of senrice of the wfthin motion, Brooks dld not appear for oral argument on the return date of the motion. He has not opposed the mbtion in writing. Therefore, this motion has been submitted to the court on defautt, and without opposition. Thfs 1 8 not the first tima Brooks has defauttd in thb cam. The money . . . . . . [* 3] judgment was also entered against her on defautt (see Final Judgment dated March 19, 2012). As of the date of this rnotIon, the money judgment mains unsatisfied. The subpoena was mved upon Brooks to obtain Information about hia incame and a88efB so that plaintfffcBn ascertain whether any of these aWr3 are available to satisfy the Judgment Wlthout Brooks' cooperatlon, plalnttRhws no other source of informationabout his income. PlalntlfFhas established that It served the subpoena on April 14, 2011. CPLR § 5224 (e); CPLR Q 308. The notlco provision of the subpoena contains the date (April 28, 201I), (2:OO pm) and place (plaintiff's sttome)rs office) where he had to appear for tlme his deposition. Brook$, howaver, fallad to appear as dlracted. The subpoena warned him that his failure to appear would be punishable by contempt The court has p~vlously fwnd Brooks In contempt of this court on September 9,201 1 and again on March 15, 2012. Contempt Is a drastlc remedy which should not be granted absent a dear right to such relief. pinto v. Pinto, 120 A.D.2d 337 (1st Dept. lB86); 8es also ysina Cowta Plnb SA v. Sanco Sav Campanv m 174 A.D.2d 487 (let Dept. 10Ql). To prsvall on a , motion to punish a partyfor dl contempt, the movant must demonstratethat the al l contemnor has violated a clear and unequivocal court ordar, known to the parties. DRL 9245; Judiciary Law 9 753[,3[31; See also: M&&k v. m, NY2d 574, 683 50 ememkd 60 NY2d 652 (1983); Pur0 v. Pum, 39 ADPd 873 (1st Dept. 1990); palossio V, Kreasler, 6 N3.M 57 (26Dept. 2004). The actlons ofths allsged contemnor must have baan calculated to, br actually defeated, impaired, lmpaded or prejudiced the Mhb or -Page 2 of 4- [* 4] remedies o the other side. Farkasv,Farkas, 200 AD2d 316 (1st Dspt. 1904). A party f seeking contempt must show that there am no altsrnatlve sffsctfva remedles avaitable. ' Qa) [&fe8]. F@rkqa Ferkaa, 201 AD2d 440 (Ih p t . 1 v. Plaintiff has proven that thls motion was sewed on Brooks. Judiciary Law 5 761; b r v. Heffner Aclencv InG., 214 AD2d 547 (2nd dept 1984); -ton m e r n m t CO. v. psnsI 168 Misc2d 138 (Sup Ct N.Y. Co. IggS). The notlce provisionsof tha motion warn Brooks that he may be punished by tfw ImposTtlon of a ffne, or irnprfsonment, or both, thus complying with the requirements of Judiciary Law 5 758. Plaintiffhas abo sstablhhed that the lnformatlon sought In the subposna I to efd jt In the s rocovary of the money it is due and Ita collection efforts. CPLR o e l - As-, Q 5251; Qkgr v, 170 AD2d 390 (1' Dept 1Wl); See 8Iso: Raw 148 MIsc2d 559 (Sup Ct., MY.Co. 1090). Atthough defendant has actual knowledgeo the subpoena and its terms, he dismgardedjt and failed t appear f o for his dspcWdan, one mare than one occasion, the last of which was scheduled, by thii court, t take place on Outober 1312011, under the penalty of contempt. o , - 17 AD.3d 847 (2"d Dept 2005). The failure to compty with a subpoena Issued by an officer of the court shall be punishable as a contempt of court. CPLR Q 2308 [a]. Plaintiff has astabllshed Brmks' dlsoMlenes of the subpoena has, defeated, Impaired, impeded or prejudlcedplalntlff's right to ascertain information about defendant's financlal resource8. Judklary Law 5 753 [a]; v. Fa- 209 AD2d 316 (1st h p t . ~ u w o n,65AD2d 616 (2"ddept. s 1994); ! 2 ~ Neck Psnnyaayer v. c t e - 7978). Plaintiff has also shown that there am no aitemathre effecthte mdk availabls. V. Fakaa, 201 ADZd 440 (1" Debt. W ) Indssd, notwithstandingprior ordm of M. -Page 3 of 4- [* 5] contempt impos,,rg less severe mrnediee, B m k s continues his patternofnommpllan#. PlalntHPs motion, to hoM defendant Brooks I contempt for falllng to comply wlth the n s u b p n a , la granted. The court hereby Imposes the following punishment: The court adJudlcetsaP f m B m k s to be in contempt of court. A separate warrant for hts a m t , so that he may be brought before the court for a heating, has bssn hued. Conclusion In accordance wlth the foregoing decision, 1f I hereby: s ORDERED plaintiffs motion for an order adJudlcatlngdefendant debtor Pierre that B r d w in contemptia hereby GRANTED upon dafaautt; plaintiff has proved that Brookswaa m a d with the Information subpoena requiring hlm to appear for her deposltton, but disregarded the a u b p n a ; and It b further ORDERED that Brooks' dlsobedisnce of the subpoena ha8 defeated, impaired, Impadad or pmjudiced plainWs dght to aacertslin informationabout defendant's financial m u m s and plalntlff has no alternative effedhra remedl88 available; and lt further ORDERED the court ha8 Issued a separatewarrant for Brooks' 3mst, SO that ha that may be brought before the court for a hearing; and it Is furfher ORDERED any rellef rsquested that has not been a d d d has that been constdared and is hereby exprcsaly denled; and It h furlher netheless P U D i O R ~ E that this conrrtitutas the decision and order of the court. R ~ Dated: New York, New York May 25,2012 So Ordered: L/ -Page 4 of 4- m 3 0 zOl2 y

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