Lyon Fin. Servs., Inc. v Scapes Professional Landscape, Inc.

[*1] Lyon Fin. Servs., Inc. v Scapes Professional Landscape, Inc. 2010 NY Slip Op 51026(U) [27 Misc 3d 1233(A)] Decided on May 26, 2010 Supreme Court, Rockland County Jamieson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 26, 2010
Supreme Court, Rockland County

Lyon Financial Services, Inc. d/b/a US BANCORP MANIFEST FUNDING SERVICES, , Plaintiff,

against

Scapes Professional Landscape, Inc. and JOSEPH T. COSTANZO, Defendants.



4759/2007



Law Office of Charles A. Gruen

44 Court Street, Suite 1212

Brooklyn, NY 11201

Joseph T. Costanzo and

Scapes Professional Landscape Management, Inc.

78 Holmes Road

Newburgh, NY 12550

Linda S. Jamieson, J.

Plaintiff brings this motion seeking contempt against defendants for their failure to comply with Information Subpoenas and Subpoenas Duces Tecum in this post-judgment matter.

The motion is denied, with prejudice. While defendants did not comply with the subpoenas — nor even respond to this motion, despite being served with it — plaintiff's motion is patently improper. Plaintiff failed to cite any section of the CPLR or Judiciary Law for the relief it seeks. That is because there is none. First, with respect to the Information Subpoenas, pursuant to CPLR § 5224(3)(iv), the "failure to comply with an information subpoena shall be governed by" CPLR § 2308(b). This section provides for a motion to "compel compliance" — and not a motion for contempt. Plaintiff — and its counsel — should know this, as they have litigated this issue before. Lyon Financial Servs., Inc. v. Pinto Trading Co., 2009 WL 2516876 (Sup. Ct. Kings Co. Aug. 17, 2009).

Next, the Subpoena Duces Tecum (which, if it were proper, may be enforced by contempt pursuant to CPLR § 5251), in this case is a nullity, as it was served by mail, and not "in the same manner as a summons" as is required by CPLR § 2303. There is no different procedure for the service of a post-judgment Subpoena Duces Tecum. See Siegel-NY Practice § 509.

The Court is extremely dismayed by counsel's failure to (1) cite any applicable statutory basis for the motion and (2) mention, and distinguish, the decision cited above. It thus finds that making this motion constitutes frivolous conduct within the meaning of 22 NYCRR § 130-1.1(c), in that this motion is "completely without merit in law."

While the Court finds that plaintiff and its counsel's conduct was frivolous, it will not issue sanctions at this time. They should consider themselves warned, however.

The foregoing constitutes the decision and order of the Court.

Dated:New City, New York

May 26, 2010 [*2]

____________________________

Hon. Linda S. Jamieson

Justice of the Supreme Court

To:

Law Office of Charles A. Gruen

44 Court Street, Suite 1212

Brooklyn, NY 11201

Joseph T. Costanzo and

Scapes Professional Landscape Management, Inc.

78 Holmes Road

Newburgh, NY 12550