Kluge v. Cooke

• Decision Date: 08 July 1985
• Citation: Kluge v. Cooke, 491 N.Y.S.2d 446, 112 A.D.2d 230 (N.Y. App. Div. 1985)
• Parties: In the Matter of J. Tara KLUGE, Respondent, v. Walter B. COOKE, Inc., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 446

491 N.Y.S.2d 446

112 A.D.2d 230

In the Matter of J. Tara KLUGE, Respondent, v. Walter B. COOKE, Inc., Appellant.

Supreme Court, Appellate Division Second Department.

July 8, 1985.

Richard C. Mariani, Springfield, N.J., for appellant.

Abraham Hecht, Forest Hills, for respondent.

Before LAZER, J.P., and GIBBONS, WEINSTEIN and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

In a proceeding to compel compliance with subpoenas duces tecum, the appeals are (1) from an order of the Supreme Court, Queens County, dated May 1, 1984, which granted petitioner's unopposed motion to hold the appellant in civil contempt for failure to obey an order of the same court directing it to comply with the subpoenas, and (2) as limited by its brief, from so much of an order of the same court, dated May 15, 1984, as denied its motion, which, although denominated as one for "leave to file papers out of time in opposition to petitioner's order to show cause", was, in effect, to vacate its default in timely opposing petitioner's motion to hold it in contempt.

Appeal from the order dated May 1, 1984 dismissed, without costs or disbursements.

Order dated May 15, 1984 reversed insofar as appealed from, without costs or disbursements, order dated May 1, 1984 vacated, and matter remitted to the Supreme Court, Queens County, for determination of petitioner's motion to hold appellant in contempt, upon condition that within 30 days after the service upon him of a copy of the order to be made hereon, with notice of entry, the attorney for the appellant personally pay the sum of $1,500 to petitioner. In the event the condition is not complied with, then order dated May 15, 1984, affirmed insofar as appealed from, with costs.

Petitioner brought a proceeding against appellant before the State Division of Human Rights, alleging that she had been discriminated against on the basis of her sex. Prior to the hearing on the proceeding, petitioner served subpoenas duces tecum upon appellant directing the production of books and records. Upon the alleged failure of appellant to comply with the subpoenas, petitioner commenced this proceeding in the Supreme Court, Queens County, to compel the appellant to comply with the subpoenas, and appellant cross-moved to quash those subpoenas. By order dated August 29, 1983, Justice Dunkin directed appellant to make available at its office all of the subpoenaed documents for inspection and copying. A copy of that order was served upon appellant's attorney. Appellant thereafter moved to reargue the motion and petitioner cross-moved to compel compliance. The matter was referred to Justice Dunkin, and the parties thereafter entered into a stipulation in open court concerning the disclosure to be made pursuant to the subpoenas. When the hearing subsequently commenced before the State Division of Human Rights, a dispute arose concerning the subpoenaed material and the hearing was adjourned.

By order to show cause returnable April 19, 1984, petitioner moved to hold appellant in contempt of the order of Justice Dunkin dated August 29, 1983. Although appellant was required to serve its cross motion and papers in opposition to respondent's motion in chief at least three days prior to the return date of that motion (CPLR 2215), it did not do so. On the return date of the motion in chief, appellant's attorney caused a paper entitled "notice of cross motion for attorneys fees and costs", returnable April 30, 1984, to be filed in the office of the clerk of Special Term. The papers in support of the cross motion contained arguments in opposition to petitioner's motion in chief....