Matter of Cadles of Grassy Meadows II L.L.C. v ASI 2 Inc.

[*1] Matter of Cadles of Grassy Meadows II L.L.C. v ASI 2 Inc. 2010 NY Slip Op 50129(U) [26 Misc 3d 1218(A)] Decided on February 3, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 2010
Supreme Court, Kings County

In the Matter of the Application of Cadles of Grassy Meadows II, L.L.C., Plaintiff,

against

ASI 2, Inc. d/b/a AUTO STAR LEASING CO. and ALEKSANDR KORCHMAR, Defendants.



12221/08



Plaintiffs' attorney

Stephen Vlock, Esq.

Vlock & Associates, P.C.

230 Park Avenue

New York, NY 10169

(212) 557-0020

Francois A. Rivera, J.

By notice of motion filed on November 23, 2009 under sequence number one, plaintiff Cadles of Grassy Meadows II, LLC. moves pursuant to CPLR §§ 2308 and 5251 for an order finding the defendant, Aleksandr Korchmar (Korchmar) in contempt for failing to comply with a subpoena. The notice of motion was served upon Korchmar by regular mail on November 20, 2009. On January 22, 2010, the date scheduled for oral argument in Part 52 of this Court, Korchmar neither appeared nor submitted opposition to the motion.

MOTION PAPERS

Plaintiff's motion papers contain an affidavit of service of the notice of motion, an affirmation of counsel, and three annexed exhibits labeled A through C. Exhibit A is a copy of a judgment entered against Korchmar on July 25, 2008 in the amount of $113,733.32. Exhibit B contains a copy of the subpoena in question and the affidavit of service of the subpoena. The subpoena directed Korchmar to appear for a deposition at the law firm of plaintiff's counsel on October 14, 2009 and directed Korchmar to produce [*2]certain documents by September 30. 2009. The affidavit of service demonstrated service pursuant to CPLR § 308 (4). Exhibit C is a statement of a notary public certifying that Korchmar did not attend the deposition.

APPLICABLE LAW

CPLR § 5224 provides as follows: Subpoena; procedure. (a) Kinds and service of subpoena. Any or all of the following kinds of subpoenas may be served: 1. a subpoena requiring attendance for the taking of a deposition upon oral or written questions at a time and place named therein; or 2. a subpoena duces tecum requiring the production of books and papers for examination at a time and place named therein; or 3. an information subpoena, accompanied by a copy and original of written questions and a prepaid, addressed return envelope.

CPLR §2303 provides in pertinent part as follows:

Service of subpoena; payment of fees in advance. (a) A subpoena requiring attendance or a subpoena duces tecum shall be served in the same manner as a summons, except that where service of such a subpoena is made pursuant to subdivision two or four of section three hundred eight of this chapter, the filing of proof of service shall not be required and service shall be deemed complete upon the later of the delivering or mailing of the subpoena, if made pursuant to subdivision two of section three hundred eight of this chapter, or upon the later of the affixing or mailing of the subpoena, if made pursuant to subdivision four of section three hundred eight of this chapter.

Judiciary Law §753(a)(5) provides in pertinent as follows: Power of courts to punish for civil contempt. (a) A court of record has power to punish, by fine and 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 or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in any of the following cases:(5). A person subpoenaed as a witness, for refusing or neglecting to obey the subpoena, or to attend, or to be sworn, or to answer as a witness.

DISCUSSION

"The use of a CPLR § 5224 subpoena does not commence a special proceeding. Like the pre-trial disclosure subpoena and the trial subpoena, it is merely captioned in the action itself, even though the action has already gone to judgment, and is deemed an [*3]adjunct of it."(see generally, Siegel's New York Practice [4th Ed.] § 509 Disclosure in Aid of Enforcement). CPLR §5224 authorizes the use of testimonial subpoena, a subpoena duces tecum and the information subpoena. It is a post judgment enforcement device.

CPLR § 2305 (b) provides that a subpoena duces tecum may be joined with a subpoena ad testificandum. CPLR §2303 requires that a subpoena be served in the same manner as a summons which means that all the alternatives of CPLR § 308 are available for service on an individual. Plaintiff served a CPLR § 5224 subpoena upon Korchmar directing him to appear for a deposition at its office on October 14, 2009 and to produce certain documents by September 30, 2009. The subpoena advised Korchmar that the matter was related to a judgment against him. There is no dispute that Korchmar did not respond to the subpoena.

Plaintiff now moves for an order punishing Korchmar for contempt based on his failure to comply with the subpoena. The affidavit of service of the plaintiff's process server indicates that he made three (3) attempts to serve the subpoena upon Korchmar personally or by serving someone of suitable age and discretion, pursuant to CPLR § 308 (1) and (2). The first attempt was made on September 4, 2009 at 2:43 p.m.; the second was made on September 5, 2009 at 7:40 a.m.; and the third was made on September 9, 2009 at 8:15 p.m. Each of these attempts was made at 65 Oceania Drive East, at apartment 2D in Brooklyn, New York, which the plaintiff's process server alleged was "the defendant's dwelling house." The affidavit of service further indicates that on September 9, 2009 at 2:43 p.m a copy of the subpoena was affixed to the door of the aforesaid address; and, a copy was mailed to Korchmar, at this address, the next day.

Plaintiff may only resort to service pursuant to CPLR § 308(4) where service pursuant to CPLR § 308 (1) and (2) cannot be made with due diligence (County of Nassau v. Lotosky, 34 AD3d 414 [2nd Dept., 2006]). The first and third of the plaintiff's attempts at service herein were made on weekdays, "during normal business hours or when it could reasonably have been expected that defendant was in transit to or from work (Earle v. Valente, 302 AD2d 353 [2nd Dept., 2003]). The second attempt was made on a Saturday morning, which may have had a greater likelihood of success, but was also at a time when it could have reasonably been anticipated that the defendant would not be at home and was insufficient to demonstrate due diligence. Moreover, the affidavit of the plaintiff's process server, together with the papers submitted with the instant motion failed to demonstrate that the process server attempted to ascertain the defendant's business address and to effectuate personal service at that location, pursuant to the provisions of CPLR § 308(1) and (2) (County of Nassau v. Long, 34 AD3d 787 [2nd Dept., 2006]).

Having failed to demonstrate the exercise of due diligence before attempting service of the subpoena pursuant to CPLR § 308(4), the plaintiff's motion for an order finding Korchmar in contempt for non-compliance must be denied.

The foregoing constitutes the decision and order of this court. [*4]

Enter X

J.S.C.

Enterforthwith  1;X

J.S.C.