Summary
denying contempt motion because plaintiff failed to properly serve subpoena pursuant to CPLR § 311-a
Summary of this case from Bd. of Managers of the Setai Condo. Residences at 40 Broad St. ex rel. Individual Unit Owners v. 40 Broad, LLCOpinion
06-17-2015
KOREA CHOSUN DAILY TIMES, INC., appellant, v. DOUGH BOY DONUTS CORP., also known as Dough Boy Donuts, Inc., respondent, et al., defendants.
Orseck Law Offices PLLC, Liberty, N.Y. (Gerald Orseck of counsel), for appellant. Razis & Ross, P.C., Astoria, N.Y. (George J. Razis of counsel), for respondent.
Orseck Law Offices PLLC, Liberty, N.Y. (Gerald Orseck of counsel), for appellant.
Razis & Ross, P.C., Astoria, N.Y. (George J. Razis of counsel), for respondent.
Opinion
In an action to recover damages for breach of a lease, the plaintiff appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated June 5, 2014, which denied its motion to hold the defendants in civil contempt for their alleged failure to honor a subpoena deuces tecum.
ORDERED that the order is affirmed, with costs.
To find a party in civil contempt pursuant to Judiciary Law § 753, the applicant must demonstrate, by clear and convincing evidence, “ ‘(1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct’ ” (El–Dehdan v. El–Dehdan, 114 A.D.3d 4, 16, 978 N.Y.S.2d 239, quoting Bernard–Cadet v. Gobin, 94 A.D.3d 1030, 1031, 943 N.Y.S.2d 164 ; see Judiciary Law § 753[A] ). Here, the Supreme Court providently exercised its discretion in denying those branches of the plaintiff's motion which were to hold the defendants Dough Boy Donuts Corp., also known as Dough Boy Donuts, Inc., and Mac Donut Corp. in civil contempt, as the plaintiff failed to establish, by clear and convincing evidence, that those defendants disobeyed a clear and unequivocal mandate contained in the subpoena deuces tecum (see CPLR 5251 ; Gray v. Giarrizzo, 47 A.D.3d 765, 850 N.Y.S.2d 549 ; Yeshiva Tifferes Torah v. Kesher Intl. Trading Corp., 246 A.D.2d 538, 539, 667 N.Y.S.2d 759 ; cf. Matter of Halioris v. Halioris, 126 A.D.3d 973, 6 N.Y.S.3d 267 ; State Farm Fire & Cas. v. Parking Sys. Valet Serv., 85 A.D.3d 761, 765, 926 N.Y.S.2d 541 ).
Further, the Supreme Court correctly denied that branch of the plaintiff's motion which was to hold the defendant 34th & 10th, LLC, in civil contempt, as the plaintiff failed to properly serve the subpoena deuces tecum upon that party (see CPLR 311–a ; Ciafone v. Queens Ctr. for Rehabilitation & Residential Healthcare, 126 A.D.3d 662, 5 N.Y.S.3d 462 ).
MASTRO, J.P., CHAMBERS, MALTESE and DUFFY, JJ., concur.