Cherfas v Wolf

[*1] Cherfas v Wolf 2008 NY Slip Op 51397(U) [20 Misc 3d 1118(A)] Decided on July 14, 2008 Supreme Court, Kings County Sunshine, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 14, 2008
Supreme Court, Kings County

Marika Cherfas, Plaintiff,

against

Walter Wolf, Defendant.



13401/2001



Attorney for Plaintiff

Saul Edelstein, Esq.

The Edelsteins, Faegenburg & Brown

61 Broadway, Suite 2210

New York, New York 10006

Attorney for Non-Party Witness

Michael A. Carlucci, Esq.

Collopy & Carlucci, P.C.

Five Penn Plaza, 19th Floor

New York, New York 10001

Attorney for Defendent

Rose Ann C. Branda, Esq.

Caruso, Caruso & Branda, P.C.

7302 13th Avenue

Brooklyn, New York 11228-0003

Jeffrey S. Sunshine, J.

This New York court is called upon to determine whether it has jurisdiction to compel a non-party New Jersey domiciliary to continue testifying in this post judgment matrimonial proceeding once he complied with a subpoena and appeared and testified in this hearing on two (2) previous dates. The witness, who was the certified public accountant for plaintiff, asserts that, because he is a domiciliary of New Jersey, this New York court does not have personal jurisdiction over him and, therefore, has no authority to compel him to continue testifying in the instant matter. Further, he contends that his previous voluntary appearances before this court did not amount to a waiver of his defense of lack of jurisdiction. Plaintiff and defendant argue that, although the court may not initially have jurisdiction to compel him to appear, he consented to the court's jurisdiction once he appeared in court without objecting to the court's jurisdiction and that he should be held in civil contempt for failure to appear at the adjourn date, which was selected in open court based upon his convenience.

The Facts

On February 14, 2008, Mr. Steven Kohan, CPA, a non-party to this post judgment matrimonial proceeding, and a domiciliary and resident of New Jersey, was served with a subpoena duces tecum at his place of employment in Whippany, New Jersey, from plaintiff's attorney. The subpoena purported to require Mr. Kohan to appear and to testify at trial in Kings County, New York as a lay witness because he was the accountant for plaintiff, who is a party to a post judgment matrimonial action pending before this court. Mr. Kohan alleges that he subsequently contacted plaintiff's attorney who told him that he [*2]"had to appear" to testify and that as a lay witness he "could not be compensated" for the time that he would be required to miss from work in order to do so.

Mr. Kohan appeared in court and testified on February 25 and February 26 of 2008. Mr. Kohan's testimony was not completed at the close of testimony on February 26, 2008, so he was asked to return in April 2008, so that his testimony could be cross examined. Mr. Kohan indicated that April was a very busy month for him and he asked to have the return date set after the April 15 tax filing deadline. To accommodate Mr. Kohan, the court and the parties agreed on a return date of April 23, 2008.

After appearing on February 25 and February 26 of 2008, Mr. Kohan consulted with an attorney who advised him that, as a New Jersey domiciliary, the New York court did not have jurisdiction to compel him to appear and to testify. Mr. Kohan was also advised that he had a right to compensation for his prior appearances and for any subsequent appearances if he chose to voluntarily appear in the future. Pursuant to this legal consultation, Mr. Kohan retained counsel who then sent a bill to plaintiff's attorney for $2,930.00 as compensation for the time that he was required to miss from work in order to appear on February 25 and February 26 of 2008 on the theory that Mr. Kohan appeared as an expert witness and not as a lay witness. Additionally, the letter advised plaintiff's attorney that Mr. Kohan would not appear to testify at the April 23, 2008, return date unless his bill for his previous appearances and an additional $1,500.00 retainer fee was paid. Neither the bill nor the retainer fee was paid and Mr. Kohan did not appear at the return date April 23, 2008. Plaintiff brought forth an Order to Show Cause to punish Mr. Kohan for civil contempt for failing to appear, which defendant supports.

The Law

Under Judiciary Law, section 2-b, the court has the power "to issue a subpoena requiring the attendance of a person found in the state to testify in a cause pending in that court". A subpoena is valid where the court has jurisdiction over the subpoenaed party or where the subpoenaed party consents to the personal jurisdiction of the court in the matter. Two (2) components must be satisfied for a court to have personal jurisdiction over a person: first, service of process must be properly effectuated (see generally CPLR 308-318; see also Keane v Kamin, 94 NY2d 263, 701 NYS2d 698 [1999]) and second, the court must have power to reach the party in order to enforce its judicial decrees (see generally CPLR 301 and 302). Service of process, no matter how flawlessly executed, cannot by itself vest a court with jurisdiction over a non-domiciliary of New York state. Generally, "[a] nonparty, nondomiciliary witness is clearly not subject to the subpoena power of the court" of New York (Zeeck v Melina Taxi Co., 177 AD2d 692, 694, 576 NYS2d 878 [2 Dept 1991]); however, regardless of their state of domicile, there are several ways that a party may consent to a court's exercise of personal jurisdiction in a specific matter where that court would not otherwise have had jurisdiction. For example, it is well-established that voluntary appearance by a party before a court that does not [*3]have personal jurisdiction amounts to complete consent to that court's jurisdiction in the matter, unless an objection to jurisdiction under Civil Practice Laws and Rules (CPLR) 3211[a] [8] is asserted at the time of appearance (see Sessa v Board of Assessors of the Town of North Elba, 46 AD3d 1163, 1164, 847 NYS2d 765 [3 Dept 2007]; see also CPLR 320[b]). Where a party consents to a court's jurisdiction it is a complete waiver of a defense based on invalid jurisdiction by that party later in the litigation.

A non-domiciliary party who does not wish to consent to a court's jurisdiction can challenge the validity of a subpoena based on invalid jurisdiction. The proper, and exclusive, method to challenge the validity of a subpoena, based on lack of personal jurisdiction, is by motion to quash or vacate (see Brunswick Hospital Center Inc. v Hynes, 52 NY2d 333, 339, 438 NYS2d 253 [1981]; see also CPLR 2304; Hynes v Moskowitz, 44 NY2d 383, 394, 406 NYS2d 1 [1978]). To be effective, a motion to quash or vacate must be made promptly, usually prior to the return date of the subpoena, so as not to delay the proceedings (see Matter of Santangello v People, 38 NY2d 536, 539, 381 NYS2d 472 [1976]; see also CPLR 2304; Matter of John Gammarano v Gold, 51 AD2d 1012, 1012, 381 NYS2d 298 [2 Dept 1976]).

The opportunity to challenge a subpoena by a motion to quash or vacate is no longer available once the party has complied with the subpoena (see Brunswick Hospital, 52 NY2d at 339). As the New York Court of Appeals held in Brunswick Hospital, "having complied with the process, the subpoenaed party no longer possesses the option of challenging its validity or the jurisdiction of its issuer" (Brunswick Hospital, 52 NY2d at 339). Limiting the time during which a party may challenge a subpoena's validity ensures that litigation will proceed in a timely and orderly manner. Without this safeguard in place, parties might wait to raise jurisdictional challenges late in the litigation, after initial issuance and compliance with a subpoena, which would make litigation considerably more time consuming, inefficient and unpredictable (Id.).

The fact that Mr. Kohan allegedly relied on the assertions of plaintiff's counsel and did not seek legal advice for himself before voluntarily appearing before this court, thereby waiving his right to challenge the subpoena and this court's jurisdiction, is immaterial. This court notes that Mr. Kohan, a C.P.A., is a businessman of experience and competence. Therefore, it is reasonable to hold him to be more sophisticated than the average layman and in a position to be more assiduous in business transactions, dealings with attorneys and general matters before the court.[FN1] Mr. Kohan was free to seek legal [*4]counsel of his own when he received the subpoena and before appearing in court to testify. Furthermore, and more importantly, the New York Court of Appeals held that procedural rules "do not cease operation in every case where an individual litigant lacks sufficient knowledge to assert his rights" (Brunswick Hospital, 52 NY2d at 339).

Under the unique circumstances of this case, Mr. Kohan complied with the subpoena, thereby consenting to this court's jurisdiction, by voluntarily entering New York, ascending the steps of the Kings County Supreme Court building and taking the stand, under oath, as a witness in the matter before the court; therefore, he waived his right to challenge the validity of the underlying subpoena and his right to object to the jurisdiction of this court over him in this matter. Had the circumstances been otherwise, the outcome may have been different.

Under Judiciary Law section 753 [A], the court has the power to "punish, by fine or imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action...pending in the court may be defeated, impaired, impeded, or prejudiced." The court's power to punish for contempt extends to "persons subpoenaed as a witness" who do not obey the subpoena or who fail to attend or to answer as a witness (see Judiciary Law § 753 [A] [5]). It is well-established by New York case law that "the mere act of disobedience [of a court order], regardless of its motive, is sufficient" to find a person in civil contempt (see Doors v Greenberg, 151 AD2d 550, 551, 542 NYS2d 324 [2 Dept 1989]; see also Great Neck Pennysaver v Central Nassau Publications, Inc., 65 AD2d 616, 616-617, 409 NYS2d 544 [2 Dept 1978]).[FN2]

Accordingly, Mr. Kohan's motive in failing to comply with this court's order directing him to appear as a continuing witness on April 23, 2008, is inconsequential in determining whether this court may find him in civil contempt since he previously consented to this court's jurisdiction by complying with the initial subpoena by testifying in court on two (2) prior dates. This is true even if Mr. Kohan believed that this court's order was invalid. It is undisputed that he chose to disobey this court's order to return on a date he agreed to instead of challenging its validity, as is provided for and is required by law.

In this case, the court finds that there is another, more appropriate, remedy at law than holding Mr. Kohan in civil contempt. Mr. Kohan consented to the jurisdiction of this court by previously appearing in this matter; therefore, he is compelled to obey this court's orders. This court orders Mr. Kohan to appear and to conclude his testimony.

It should be noted that this court recognizes the distinction between a party to an [*5]action and a witness thereto (see Giulini v Gurahian, 154 AD2d 465, 547 NYS2d 232 [2 Dept 1989]). Although most of the cases concerning consent to jurisdiction based on failure to challenge the jurisdiction of an issuing court before appearing refer to "party" or "defendant", the Second Department stated in Doors v Greenberg, that a non-party's failure to respond to a subpoena without challenging the subpoena's validity can be punishable by civil contempt. In Doors, the subpoenaed non-party failed to appear for oral examination because he believed that the subpoena was invalid. The court in Doors noted that "[i]f the respondent wished to resist the oral examination...the appropriate remedy would have been to apply to the court" for relief and that choosing instead to ignoring the subpoena was grounds for civil contempt (Id.). Furthermore, in Hynes v Moskowitz, the New York Court of Appeals affirmed that a "person" served with an invalid subpoena could challenge it and that where a subpoenaed person failed to comply with a subpoena the issuer could move to compel compliance (44 NY2d 383, 393, 406 NYS2d 1 [1978]).

Similarly, in the instant case, if Mr. Kohan wished to challenge this court's jurisdiction over him he was required to apply to this court for relief through a motion to quash before taking the stand and testifying in this matter. Not doing so amounted to consent to this court's jurisdiction in this matter.

It should also be noted there are strong policy considerations supporting holding non-parties to the same standard as parties to an action in situations where they wish to challenge the personal jurisdiction of the court. It would be prejudicial to the parties involved if non-parties were not held to the same standard. It would permit non-party witnesses, who are not domiciled in New York, to selectively testify on some issues while retaining the opportunity to refuse to be cross examined or to conclude testifying merely by waiting to challenging the court's jurisdiction only at the time when the witness no longer wished to testify. This would allow some witnesses to control the courtroom and the litigation process at will. In effect, this would allow non-party witnesses who are not domiciled in New York to preserve their objection to jurisdiction until it was convenient to them to use it. This would be in complete opposition to the policies outlined in the voluminous case law limiting the period of time that parties to an action are allowed to challenge a court's personal jurisdiction before their failure to object converts into a waiver of the right to object.

Therefore, this Order to Show Cause for an order of contempt is denied, without prejudice, with leave to renew. The non-party witness is directed to appear for continence of the trial. Counsel shall communicate by conference call with JHO Gans on Monday, July 28, 2008 at 347-296-1642 to set a date for continuance of the trial.

This shall constitute the decision and order of the court.

E N T E R

[*6]

JEFFREY S. SUNSHINE

J. S. C.

Attorney for Plaintiff

Saul Edelstein, Esq.

The Edelsteins, Faegenburg & Brown

61 Broadway, Suite 2210

New York, New York 10006

Attorney for Non-Party Witness

Michael A. Carlucci, Esq.

Collopy & Carlucci, P.C.

Five Penn Plaza, 19th Floor

New York, New York 10001

Attorney for Defendent

Rose Ann C. Branda, Esq.

Caruso, Caruso & Branda, P.C.

7302 13th Avenue

Brooklyn, New York 11228-0003 Footnotes

Footnote 1:The court is free to recognize that competent businessmen are more "sophisticated" than the average "naive laymen" in business matters and may be generally more astute in business transactions and more savvy in their dealings regarding legally binding matters (see generally Halitzer v Ginsberg, 80 AD2d 771, 436 NYS2d 738 [1 Dept 1981]; Kunze v Arito, 48 AD3d 272, 851 NYS2d 182 [1 Dept 2008]).

Footnote 2: In order to hold a party in contempt for disobedience of a subpoena, the subpoena must be "so ordered". (See generally Siegel, New York Practice § 385, at 652-653 [4th ed]). Here, the witness appeared and as such it is his disobedience of the direction to return on the adjourn date which is of concern to the court.