Calderon v Holland

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Calderon v Holland 2021 NY Slip Op 32603(U) November 10, 2021 County Court, Suffolk County Docket Number: Index No. 622474/2019 Judge: James F. Matthews Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] DC-88 Order on Motion Index No . 622474 / 2019 COUNTY COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK Present : HON . JAMES F. MATTHEWS Acting County Court J udge MOTION DATE : September 14 , 2021 _______________x JUAN C. CALDERON , Plaintiff , -againstCHRISTINA S . HOLLAND, Defendant , _______________x Upon the fol l owing papers numbered l to _S_ and on this motion by counsel for defendant for an Order issuing a Warrant directi ng the Sheriff of Suffolk County to bring DIANA BRANCH for a deposition at the Law Offices of Brian J . McGovern , LLC . and an Order d i recting DIANA BRANCH to pa y the damages and costs for the within motion to defendant by application and Affirmation in Support with supporting papers 1-5 ; Notice of Cross Motion and supporting papers __ ; Answering Affidavits and supporting papers ___ ; Replying Affidavits and supporting papers _ _ _ ; Filed papers _ _ ; Ot her_ _ (ei.d after ltetir L,g eom,.!el in ::s1.1ppor t of a ,.d oppo.:s ed to the mot.:.on ) ; and The above entitled action having been removed from the Supreme Court , County of Suffolk , State of New York , and assigned to the County Court , Cou nty of Suffolk, State of New York , pursuant to CPLR 325(d ) , §19(a) of Article VI of the New York State Constitution , and §202 . 13(c) o f the Uniform Ru l es for the New York State Trial Courts , for determination and conference , by Order dated 08 / 05/202 1 (Luft , Martha L ., A. J . S.C . ) ; and Al l -pending motions having been adjourned by Acting J udge of the County Court (M.atthews, J.) , to September 14, 202 1 , and due deliberation having been had therein; t herefore now , i t is ORDERED that the unopposed mot i on by counsel for defendant seeking an order pursuant to CPLR 2308 , issuing a warrant directing the Sheriff to bring non-party Diana Bran ch before the Law Offices of Brian J . McGovern, LLC ., for a deposition pu r suan t to the Subpoena Ad Testificandum of defen dant Christina S . [* 2] Holland dated 05/01/2021 and personally served on 05/04/2021 , which required t he appe arance of Diana Branch at a deposition on May 31 , 2021, at which she failed to appea r, is denied ; and it is further ORDERED that the unopposed motion by counsel for defendant seeking an order directing non- party Diana Branch to pay defendant Chr istina S . Holland for the damages and costs to file the instant motion, is denied. A subpoena captioned Subpoena Ad Testificandum issued on behalf of defendant Christina s. Holland dated 05/01/2021 and personally served on non-party Diana Branch on 05/04/2021 at 26 Ronek Drive , Amityville, NY 11701, was duly issued by defendant's a ttorney o f record pursuant to CPLR 2302(a) , for the witness Diana Branch , to appear and attend a deposition at Deitz Lexitas Court Reporting, located at 1757 Veterans Hwy., Suite 28, Is l andia , NY 11749 , or via Zoom video conferencing , on the 31st day of May, 2021, at 10 : 00 AM (see Affidavit of Alan Feldman dated 05/04/2021) , a time not less than seven days before the return date of the subp oena . The non - party witness, Diana Branch, failed to attend pursuant to the sa id subpoena, and did not seek an adjournment for another date and time for the taking of said deposition (se e Affirmation of Michael J . Liloi a , Esq ., dated 06/02/2021) . Thereafter , by motion dated June 2, 2021 , counsel for defendant, seeks an order for a warrant pursuant to CPLR 2308(b), directing the Sheriff to bring Diana Branch before the Law Offices of Brian J. McGovern , LLC ., for a deposition pursuant to the Subpoena Ad Test if i candum persona lly served on Diana Branch on 05 / 04/2021 , and also moved for an order directing Diana Branch to pay t o defendant Christina S. Holland, damages for an unknown amount, including c ounse l f ees, and costs not to exceed $50.00, for bringing the instant compliance motio n, pursuant to CPLR 2308 (b) . Under CPLR 2308( a) , a judicial subp oe n a is a subpoena issued by a judge, a clerk, or an officer of the court, which includes an attorney representing a party to a pending action, as in the instant matter 1 (see Douglas Elliman , LLC . v TWP Rea l Es t ate, LLC ., 189 A D3d 614 [ l '" Dept 2020]; Moore v Sunshine, 126 Misc2d 284 ( Sup Ct , New York Ct y 1984 )) . The subpoena can be issued a t any stage of a judicial proceeding, and includes a subpoena for 1 A non-judicial subpoena, in contrast, is one which is not returnable in a court (such as an administrative proceeding or an arbitration [see CPLR 2302]), and its compliance may be compelled in the Supreme Court. which may also impose cosls and a penalty not exceeding fifty dollars, each, and damages sustained by the failure to comply (see CPLR 2308[b]). 2 [* 3] an appearance at a deposition (see Banker 's Trust Co. v Braten , 1 94 AD2d 378 [P'- Dept 1 993]). "CPLR 2308 (a) se ts forth the penalties a pplicable to the disobedience of a judicial subpoenau (see Cadieroc k Joint Ven t ure , L .P. v Forde, 1 52 AD3d 483 [2~ Dept 2017]) . Disobedience of a subpoena issued by an attorney in a judicial proceeding is punishable as a contempt of court (see CPLR 2308[a]), and permits recovery of attorney fees from the offending party by a party aggrieved by the contemptuous conduct (see Jud ici a r y Law §77 3 ; see also Schwartz v Schwartz, 79 AD3d 10 0 6, l O10 [ 2 n•'.l Dept 20 1 0] ) . "While disobedi enc e of a judicial subpoena may be punished as a contempt, disobedience of a n on -judicial subpoena may not " (see Lyon Financial Se r vices, Inc . v Pinto Trading Co ., 24 Misc3d 1237 [A] [Sup Ct, Kings Cty , City of New York 2009]). "In such i nstance , the par ty seeking enforcement must first seek a court order to compel compl ia nce with a non-judicial subpoena" (Id . at *3) . "A person who is served with a non-judicia l subpoena cannot be held in contempt for failure to comply unl ess and until the court has issued an order compelling compliance, which order has been disobeyed" (Id . a t *3 ; see also Dias v Con . Edison , 116 AD2d 453 , 454 [1st Dept 1986 )) . A Court of record, in pertinent pa rt to t he instant case, "has the 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 spe cial proceeding , pending in the Court , may be defeated, impaired, impeded , or prejudiced, in any of the follo wing cases (see Judiciary Law §753[A]): 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 wi tne ss." (see Judiciary Law §753 (5]) . Moreover , " in a case specified in section 753 _ __ that a Court of record , or a judge thereof ... has power to punish, by fine and i mprisonment, or eithe r , or general l y as a contempt , a neglect or violation of duty, or other misconduct; and a right or remedy of a party to a civil action o r a special proceedi ng pending in the Court, or before the j udge ... may be defeated , impai red , impeded, or pre j udiced thereby, the offense must (emph asis added) be punished as prescr ibed in the following sections of this article" (see Judiciary Law §754 ) . " Unlike criminal contempt sanctions which are i ntended to punish , civil contempt fines are intended to compensate victims for their losse s" ( see State of New York v Uni a ue Ideas , 44 NY2d 345 [1978]) . " ... plaintiff must sho w that it su ff ered an actual loss to recover compensation in a contempt proceeding" (see ,, .) [* 4] Ortega v City of New York , 11 Misc3d 848 (Sup Ct, Ki ngs Cty, City of New York 2006] ; see also In the Matter of Barclay ' s Bank v Hughes , 306 AD2d 406 [ 2~ Dept 2003)). Legal fees and disbursements are also recoverable (Id . at 407). The s tatuto ry p r ocedure to punish for civil contempt , includes Judiciary Law §7 56 , which requires that " an appl i cation to pun i sh for a contempt punishable civilly, may be commenced by notice of motion .u The application , inter alia, shall also contain on its face "a notice that the purpose of the hearing is to punish the accused fo r a contempt of court , and that such punishment may consist of fine or imprisonment , or both, according to law , together with the following legend printed or type written in a size equal to at least eight point bold type : WARNING: YOUR FAILURE TO APPEAR IN COURT MAY RESULT IN YOUR IMMEDIATE ARREST AND IMPRISONMENT FOR CONTEMPT OF COURT" (See Judiciary Law §756) . It is wel l settled that "an application to punish for contempt that does not contain the warnings required by Judic i ary Law §756, is j urisdictionally defective and should not be entertained by t he Court" (see Ortega v City of Ne,, York, supra at 864). Where "none o f these safegua rds were fol lowed, the Court [is] without jurisdiction to punish the [witness] for contempt" (see Cappello v Cacpello, 274 AD2d 538 [2 M Dept 2000)) . Here, the Court finds that the factual circumstances of this matte~ spell out a classic case of the disobedience of a judicial subpoena which was issued by an attorney as an officer of the Court , which must be punished unde r the J udiciary Law with a contempt of court finding (see Judiciary Law §754), for t h e failure of the non-pa rty Diana Branch to obey a subpoena duly issued by defendant ' s attorney of record, as an officer of the court, for a pending court matter (see CPLR 2308 [a)) . However , the Cour t notes the motion by defendant to compel the non-party ' s compl iance with its subpoena was brought under the incorrect sectio n of CPLR 2308 . This is shown by the r e lief sought by defendant of the issuance of a warrant directing the Sheriff to bring Diana Branch before the Law Offices of Brian J . McGovern, LLC ., for a deposition pursuant to a Subpoena Ad Testificandum previously served on May 4, 2021, which requi red the appearance of Diana Branch at a deposition on May 31, 2 0 21, at which she failed to appear . "Because th e subpoena [here] was issued by an officer of the Court-namely [defendan t ' s) counsel- it was a judicial subpoena , and therefore CPLR 2308(b) (1) , which app lies only to non-judicial subpoenas , was inapplicable" (see Douglas El liman, LLC . v TWP Real Estate , LLC . , supra at 614)) . The motion should have been brought unde r CPLR 2308(a), which relief would have sough t punishment as a contempt of court which must be pun ished under 4 [* 5] the statutory provisions of t he Judiciary Law. As a result , there is no compliance with the procedure set forth in Judiciary Law, Chapter 30 , Article 19 , sections 753 through 778 , which i nclude s the s ta tutory safeguards and warnings require d to be pri nt ed by Judiciary Law §756. There is no language printed on t he f ace of the Notice of Motion which states that : The purpose of t he hearing is to punish the accused for a contempt of court, and that such punishment may consist of fine or imprisonment , or both, according to law, together with the following legend printed or t ype written in a size equal to at l east eight point bold type : WARNING: YOUR FAILURE TO APPEAR IN COURT MAY RESULT IN YOUR IMMEDIATE ARREST AND IMPRISONMENT FOR CONTEMPT OF COURT. Therefore , the Court determines that defendant has faile d to follow the motion mandat e s seeking an app l ication to punish for contempt of the Judic iary Law, Chapter 30 , Ar ti c le 19, sections 750 through 781 , et. seq . , and the Court lacks jurisdiction to hear t he instant motion as a consequenc e . Accordingly,, the defendant's motion is denied in its totality. The foregoing constitutes the decision and order of the Court . Dated : November 10 , 2021 5

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