McGrail v 201 East 116th St. Realty Corp.

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McGrail v 201 East 116th St. Realty Corp. 2013 NY Slip Op 30569(U) March 15, 2013 Sup Ct, New York County Docket Number: 110421/2010 Judge: Kathryn E. Freed 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. NNED ON 312512013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART *J' Index Number : 110421/20 0 MCGRAIL, SHANE INDEX NO. vs MOTION DATE 201 EAST 116TH ST. MOTION SEQ.NO. Sequence Number : 004 PUNISH FOR CONTEMPT 6%r3tl- ! The following papers, numbered I to 7'3 ,were read on this motion tolfor Notice of MotionlOrder to Show Cause -Affidavits Answering Affidavits Replying Affidavits - Exhibits IN O W INO(+ IWd" - Exhibits Upon the foregoing papers, it is ordered that this motion is FILED MAR 25 2013 MAR 1 5 2013 I. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ..,........................MOTION 3. CHECK IF APPROPRIATE: ................................................ .a DISPOSED CASE IS: (7 GRANTED NON. K 4 + 2 7 f i v g . &&. ' ~y JUS~KBOF S ~ H ~ I ~ ~ D I S P O S I T I O N 0DENIED GRANTED IN PART [TJ OTHER SUBMIT ORDER 0SETTLE ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] Plaintiff, DECISION/ORDER Index No.: 110421/2010 Seq. No.: 004 -against- 201 EAST 116THST. REALTY CORP., SILVER STAR MANAGEMENT CORP., SILVER & SILVER PROPERTIES, LLC., SILVER & SILVER PROPERTIES. WC.. BANK OF AMERICA CORPORATION AND THE CITY OF NEW OR PRESENT: Hon. Kathryn E. Freed J.S.C. *RL.ED I Defendants. NUMBERED PAPERS NOTICE OF MOTION AND AFFIDAVITS ANNEXED.................. ORDER TO SHOW CAUSE AND AFFIDAVITS ANNEXED......... ANSWERING AFFIDAVITS. ............................................................ REPLYING AFFIDAVITS.. ............................................................... EXHIBITS........................................................................................... STIPULATIONS................................................................................. OTHER................................................................................................ ......1-2......... ..................... ..................... ..................... ....... 3-4........ ...................... ...................... UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDER ON THIS MOTION IS AS FOLLOWS: Defendants move for an Order pursuant to CPLRS 3201 and Judiciary Law§ 753(A)(5), holding plaintiff Maxine Bailey in contempt of court or compelling her compliance with aNon-Party Witness Subpoena. No opposition has been submitted, After a review of the papers presented, all relevant statutes and caselaw, the Court grants the motion only to the extent that it will sign an order compelling Ms. Bailey's compliance with said 1 [* 3] subpoena. Factual and procedural background: Plaintiff is suing for injuries he allegedly sustained on January 9, 2010, as a result of a trip and fall on an abandoned tree well in front of a building located at 20 1 East 1 1Sh Street (alWa 2 125 Third Avenue), New York, New York. Subsequently, he commenced the instant action via a Summons and Complaint on July 28,2010. On January 14, 2011, defendants served a Verified Answer, wherein defendant Silver concedes that the building was owned by 201 East 1115 ~ Realty COT. On August 27,20 10, the City served its Verified Answer, Additionally, Bank of America Corporation served its Verified Answer on November 10,2010. In plaintiff s Supplemental Response to Defendants Demand for Witness Information, dated May 1,2012, Maxine Bailey was disclosed as a witness. Consequently, defendants counsel drafted a Non-Party Witness Subpoena, dated August 31, 2012, which was personally served on her on September 9, 2012. Said subpoena directed Ms. Baily to appear for a deposition scheduled for October 24,2012. Moreover, on September 27,2012, a Notice to Take Examination Before Trial of a Non-Party Witness was served on counsel for the other parties. Following the service of the subpoena on her, Ms. Baily telephoned defendants counsel and stated that she was a witness to the accident, as well as the alleged condition, She further stated that she had received the subject subpoena and would be present on the designated deposition date. However, on that day, Ms. Baily failed to appear. A brief statement was placed on the record noting her absence. Defendants Silver now assert that since Ms. Bailey failed to proffer an explanation for her absence, she should be held in contempt of court pursuant to CPLRg 2308 and New York Judiciary 2 [* 4] Laws 753(A)(S). In the alternative, defendants Silver assert that she should be compelled to comply with the subpoena pursuant to CPLRS 2308(b). Conclusions of law: It is well settled that [c]ontempt is a drastic remedy which should not be granted absent a clear right to the relief (Pinto v. Pinto, 120 A.D.2d 337,338 [lst Dept. 19861; see also Benson Park Associates LLC v. Herman, 93 A.D.3d 609 [lstDept, 20121 ), Additionally, to warrant such relief, the aggrieved party must show that the witness willfully failed to comply with the subpoena ( see The Board Of Managers Of the Atrium Condominium v. West 79thStreet Cog., 17 A.D. 3d 108 [ 1 Dept. 20051 ). Judiciary Laws 753(A)(5) provides that a court has the power to punish, [a] person subpoenaed as a witness, for refusing or neglecting to obey the subpoeka, or to attend, or to be sworn, or the answer as a witness. In order to ascertain if contempt has occurred, several criteria must be met ( see i.e. Thompson v. Pollack, 59 A.D.3d 525 [2d Dept. 20091 ). First, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect; second, it must also appear, with reasonable certainty, that the order has been disobeyed; third, the party to be held in contempt must have had knowledge of the court s order, although service of said order on the party is not necessary; and finally, it must be demonstrated that the party to the litigation has been prejudiced as stated in Judiciary Laws 753 (A) ), ( id.at 527). In the case at bar, the Court has reviewed the subpoena sent to Ms. Bailey, in addition to the affidavit of personal service, both annexed to the instant motion as exhibits. While it would seem that all of the aforementioned criteria have been met, the Court is still not convinced that Ms. 3 [* 5] Bailey's actual failure to appear was willful or deliberate. Indeed, defendants have not proffered any evidence that her failure to appear was the result of deliberate non-compliance. It does not appear that following her failure to appear, defendants' counsel made any follow-up efforts to contact her, to determine the reason(s) for her absence. Thus, in consideration of this, the Court is not willing to hold a non-party witness, whose failure to appear has not been fully explained, in contempt of court. Therefore, in accordance with the foregoing, it is hereby ORDERED that defendants' motion to hold Maxine Bailey in contempt is granted only to the extent that the Court will sign an order compelling her compliance with a Non-Party Witness Subpoena; and it is further ORDERED that included in said Non-Party Witness Subpoena is language that apprises Ms. Bailey that failure to appear may result in her arrest; ind it is further ORDERED that Ms. Bailey is to be served personally; and it is further ORDERED that the remainder of the action shall continue; and it is further ORDERED that this constitutes the decision and order of the Court. DATED: March 15,2013 4

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