Matter of Hoffman v Westchester County

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Matter of Hoffman v Westchester County 2011 NY Slip Op 33406(U) December 12, 2011 Supreme Court, New York County Docket Number: 102582/11 Judge: Saliann Scarpulla 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 I212312011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK &yMlbl- PRESENT: COUNTY * PART MOTION DATE MOTION CAL. The following papers, numbered 1 to NO. were read on thls motion tolfor Notice of Motion/ Order to Show Cause - Affidavit8 - Exhibits ... Answering Affidavits - Exhibits Replying Affidavits Cross-Motion: 0 Yes No Upon the foregoing papers, it is ordered that thia motion f J UNFILED JUDGMENT Thls - ludqment has not been entered by the County Clerk and notice of entry cannot be sewed based hereon, To obtain entry, counsel or authorized repteWnhtiv8 muat appear in perm at the Judgment Clerk's Oeak (Room 141B). Dated: \>I\.?\\ / \ ' \ L J. S. C. SAL1ANFe S CN?? ! LLA J Check one: FINAL DISPOSITION Check if appropriate: DO NOT POST n 0 SUBMIT ORDER/ JUDG. NON-FINAL DISPOSITION 0 REFERENCE 0 SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: CIVIL TERM: PART 19 _____-- _________-1______lr___ll____r___-------------- ------------- X I THE MATTER OF THE APPLICATION OF N RUSSELL HOFFMAN, INDIVIDUULY AND AS PRESIDENT OF ¬ ¬ELMCAPITAL GROUP, INC., Index No.: 102582/2011 Petitioners, Submission Date: 8/10/2011 - againstWESTCHESTER COUNTY, JOHN WARNER, CHIEF CLERK NEW YORK COUNTY AND J.H.O. IRAGAMMERMAN, PECISION AN D QRDER For Respondent J.H.O. Gammerman: Eric T. Schnaideman, Attorney General 120 Broadway, 24* Floor New York, NY 10271 For Petitioner: James Michael Lenihan 235 Main Street White Plains, NY IO601 Clerk and noti& of entry cannot be served based here& To Verified Petition. .. . . . . . . . . . . obtain entry, counsel or authorized representative must Verified Answer , . . . . . . . .. . . . . . 2appear in persgn at the Judgment Clerk s Desk (Room 1416). I I I I HON. SALIANN SCARPULLA, J.: In this Article 78 proceeding for a writ of prohibition, petitioner Russell Hoffman ( Hoffman ), Individually and as president of Helm Capital Group, Inc. seeks to stay an order for arrest issued by respondent J.H.O. Ira Gammerman (L Gameman ) on February 2, 20 11, to vacate a prior order of contempt, and to stay all further contempt proceedings and post-judgment proceedings. 1 [* 3] Hoffman is the president of Helm Capital Group, Inc. ( Helm ), defendant in theaction Jeffrey Hogman v. Helm Capital Group, Inc., Index No.: 603 109/2008 ( underlying action ). In that action, Hoffman s brother Jeffrey Hoffman sought to recover monies he allegedly loaned to Helm in or around 2005. On December 22,2008, the parties in that case stipulated to the assignment of the case to Gammerman as Judicial Hearing Officer, with the authority to exercise all the powers of a Justice of this court... On or about March 26, 2009, judgment was entered in the underlying action in favor of Jeffrey Hoffman and against Helm in the amount of $539,612.24. Following entry of judgment, Jeffrey Hoffman commenced discovery pursuant to Article 52 to collect on the judgment, and sought to take Hoffman s deposition and to obtain certain business records, After Hoffman failed to appear on several occasions and failed to comply with certain court orders, Jeffrey Hoffman moved for an order of contempt. On March 15,2010, Gammerman entered a Final Order of Contempt. Hoffman still failed to produce records and other subpoenaed documents. On September 2,20 10, an arrest order was issued by Gammerman and on September 24,2010, Hoffman was brought before the court and ordered to produce a complete set of Helm s bank records and any other documents relevant to determining the worth and location of Helm s assets. On December 22,2010, Gammerman ordered Hoffman to produce the records by December 27,2010 OF face arrest and further fines. At a hearing conducted before Gammerman on January 3,20 11, the Court again ordered 2 [* 4] Hoffman to produce the records, this time by January 3 1,2011. According to Hoffman, the subject records were either destroyed, removed from the company, or being held by the accountants who are attempting to restructure the books after [Jeffrey Hoffman] orchestrated an audit that it made it look like the company was virtually worthless. Hoffman s counsel claimed that he was on trial on January 3 1,2011 and sent an affirmation of actual engagement to Gammerman on January 30,20 11. Hoffman and his counsel did not appear in court on January 3 1,20 11 and as a result, Gammerman issued an Order for Arrest of Judgment Debtor filed February 2,20 11. On March 3,201 1, Hoffman commenced this Article 78 proceeding seeking to prohibit Gammerman from holding him in contempt and to vacate the arrest order. At oral argument, this Court stayed the arrest warrant but did not vacate the contempt order. This Court indicated that Hoffman could appeal from the January 3, 201 1 order, and shortly thereafter, Gammerman produced a so ordered copy of the January 3,201 1 transcript so that Hoffman could appeal. Hoffman did not perfect an appeal, and this proceeding was submitted for decision. In his petition, Hoffman first alleges that as a judicial hearing officer, Gammerman was without legal or judicial authority to hold Hoffman in contempt or to issue an order or warrant for his arrest. Hoffman further explains that he did not appear in Court on January 3 1,2011 because his counsel advised him that as Helm, a corporation, was the defendant in the underlying action, it could only appear through counsel, and counsel was 3 [* 5] m t available to appear in court before Gammerman that day. Finally, he claims that the records that Gammerman ordered him to produce are a trade secret and would negatively impact Helm and, in any event, many of the documents were removed or destroyed by Jeffrey Hoffman. In opposition, Gammerman argues that Hoffman had an adequate remedy at law which he failed to exercise and therefore, the remedy of prohibition is unavailable. He further argues that in any event, there are no grounds for a writ of prohibition because he did not act without authority or in excess of his jurisdiction in any of his rulings or orders in the underlying action. The parties stipulated to have Gammerman hear and determine all aspects of the action and to exercise all of the powers of a Supreme Court Justice. piscussion The remedy of prohibition is available only where there is a clear legal right, and then only when a court--in cases where judicial authority is challenged-acts or threatens to act either without jurisdiction or in excess of its authorized powers. Holtzman v. Goldman, 71 N.Y.2d 564, 569 (1988); Lipari v. Owens, 70 N.Y.2d 731, 732 (1987); Gulinson v. Graci, 182 A.D.2d 819 (2 d Dept. 1992). However, prohibition does not lie, even if there has been an excess of jurisdiction, if there is available an adequate remedy, by way of appeal or otherwise. Molea v. Marasco, 64 N.Y.2d 7 18 (1 984), Mahl v. Donovan, 191 A.D.2d 565 (2 dDept. 1993). 4 [* 6] * Here, this Court gave Hoffman the opportunity to a p p d from the so ordered January 3,201 1 transcript in which Gammerman ordered Hoffman to produce the subject records. He also had the opportunity to appeal from the contempt order and the underlying judgment. Hoffman failed to pursue these available remedies and has failed to provide any explanation for his failure to do so. Accordingly, the remedy of prohibition is not available. In accordance with the foregoing, it is hereby ORDERED and ADJUDGED that the petition of Russell Hoffman, Individually and as president of Helm Capital Group, Inc. is denied and the proceeding is dismissed; and it is further ORDERED that the Clerk of the Court is directed to enter judgment accordingly. This constitutes the decision, order and judgment of the Court. Dated: New York New York December\ 20 11 ENTER: UNFILED JUDGMENT This judgment has not been entered by the Coun and natice o entry cannot be senred f ---yd==dwauthomed w i n perrron a the Judgment t 1416). 5

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