Recitation, as required by CPLR 2219 [of the papers considered in the review of this motion: Papers Notice of Motion with exhibits 1 DECISION/ORDER Upon the foregoing papers, the decision and order of the court is as follows: This is plaintiff's motion for an order adjudicating defendant Adean Butler, in contempt for the failure to comply with the Subpoena Duces Tecum, with Restraining Notice ("subpoena") that plaintiff served on him. Plaintiff has already obtained a money judgment against Adean Butler in the amount of $35,023.29. The money judgment represents property damage arising from a motor vehicle accident. Plaintiff is attempting to enforce and satisfy this money judgment. Although plaintiff has filed proof of service of the within motion, defendant did not appear for oral argument on the return date of the motion. Additionally, defendant has not opposed the motion in writing. Therefore, this motion has been submitted to the court on default, and without opposition. This is not the first time defendant had defaulted in this case. The money judgment was also entered against him after an inquest. Defendant also appeared and sought to vacate said Judgment which was denied by the December 15, 2023 Decision and Order of the Hon. Cassandra Johnson, J.C.C. As of the date of this motion, the money judgment remains unsatisfied. The subpoena was served upon him to obtain information about his income and assets so that plaintiff can ascertain whether any of these assets are available to satisfy the judgment. Without defendant's cooperation, plaintiff has no other source of information about defendant's income. Plaintiff has established that the subpoena was served on September 14, 2023. The notice provision of the information subpoena requests responses within seven days. Defendant, however, failed to appear as directed. The subpoena warned her that the failure to appear would be punishable by contempt. A follow up letter was mailed on February 7, 2024. To prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the alleged contemnor has violated a clear and unequivocal court order, know to the parties. DRL 245; Judiciary Law 753[A[[3]; See also: McCormick v. Axelrod, 59 NY 2d 574, 583 amended 69 NY 2d 652 (1983); Puro v. Puro, 39 A.D. 2d 873 (1st Dept. 1990). The actions of the alleged contemnor must have been calculated to, or actually defeated, impaired, impeded or prejudiced the rights of remedies of the other side. Farkas v. Farkas, 209 A.D. 2d 316 (1st Dept. 1994). A party seeking contempt must show that there are no alternative effective remedies available. Farkas v. Farkas, 201 A.D. 2d 440 (1st Dept. 1994). Plaintiff has proved that this motion was appropriately served on defendant. Judiciary Law 761; Minzer v. Heffner Agency Inc., 214 A.D. 2d 547 (2nd Dept. 1994); Hampton v. Annal Management Co. Ltd. 168 Misc 2d 138 (Sup. Ct. N.Y. Co. 1996). The notice provisions of the motion warn defendants that she may be punished by the imposition of a fine, or imprisonment, or both, thus complying with the requirements of Judiciary Law 756. Plaintiff has also established that the information sought in the subpoena is to aid it in the recovery of the money it is due and its collection efforts. CPLR 5251; Gabor v. Renaissance Associates, 170 AD 2d 390 (1st Dept. 1991), the Court concludes that defendant has actual knowledge of the subpoena and its terms, he disregarded it and failed to furnish a response. Ottomanelli v. Ottomanelli, 17 A.D. 3d 647 (2nd Dept. 2005). The failure to comply with a subpoena issued by an officer of the court shall be punishable as a contempt of court. CPLR 2308 [a]. Plaintiff has established defendant’s disobedience of the subpoena had defeated, impaired, impeded or prejudiced plaintiff’s right to ascertain information about defendant’s financial resources. Judiciary Law 753 [a]; Farkas v. Farkas, 209 A.D. 2d 316 (1st Dept. 1994). Plaintiff has also shown that there are no alternative effective remedies available. Farkas v. Farkas, 201 A.D. 2d 440 (1st Dept. 1994). Plaintiff’s motion, to hold defendant Adean Butler in contempt for failing to comply with the subpoena is granted. Plaintiff has not, however, specified the remedy it would like the court to impose on Adean Butler for his refusal and wilful disregard of the information subpoena, leaving the matter to the court’s discretion. The court hereby imposes the following punishment: The judgment debtor Adean Butler, as punishment for contempt of court, is hereby fined the sum of FIVE HUNDRED DOLLARS ($500.00). Adean Butler shall pay the sum of FIVE HUNDRED DOLLARS ($500.00) to the plaintiff no later than Twenty (20) Days after service of this order with notice of entry. Conclusion In accordance with the foregoing decision, It is hereby ORDERED that plaintiff’s motion for an order adjudicating defendant debtor Adean Butler, in contempt is hereby GRANTED upon default; plaintiff has proved that Adean Butler was served with the information subpoena requiring him to respond to the information subpoena, but disregarded the subpoena; and it is further ORDERED that defendant’s disobedience of the information subpoena has defeated, impaired, impeded or prejudiced plaintiff’s right to ascertain information about defendant’s financial resources and plaintiff has no alternative effective remedies available, and it further ORDERED that the court imposes the punishment of a FIVE HUNDRED DOLLARS ($500.00) fine upon Adean Butler as punishment; and it is further ORDERED that Adean Butler shall pay the sum of FIVE HUNDRED DOLLARS ($500.00) to the plaintiff no later than TEN (10) DAYS after service of this order with notice of entry, and it is further ORDERED that any relief requested that has not been addressed has nonetheless been considered and is hereby expressly denied; and it is further ORDERED that this constitutes the decision and order of the court. Dated: October 23, 2024
