Manswell v. Baptiste

• Decision Date: 20 November 2019
• Docket Number: CV-9550/13
• Citation: 66 Misc.3d 528,113 N.Y.S.3d 519
• Parties: Darlene MANSWELL, Plaintiff, v. Deverson BAPTISTE d/b/a Dev B Services and Kemuel F. Baptiste d/b/a Kemmy's Roofing, Defendant.
• Court: New York Civil Court

66 Misc.3d 528

113 N.Y.S.3d 519

Darlene MANSWELL, Plaintiff,

v.Deverson BAPTISTE d/b/a Dev B Services and Kemuel F. Baptiste d/b/a Kemmy's Roofing, Defendant.

CV-9550/13

Civil Court, City of New York.

Decided November 20, 2019

Kazlow & Kazlow, 237 West 35th Street, 14th Floor, New York, NY 10001, (212)-947-2900, Counsel for Plaintiff

Deverson Baptiste, d/b/a Dev B Services, 4704 Foster Avenue, Brooklyn, NY 11203, Defendant, pro se

Kemuel F. Baptiste, d/b/a Kemmy's Roofing, 1742 Union Street, Apt 4A, Brooklyn, NY 11213, Defendant, pro se

Sandra E. Roper, J.

INTRODUCTION

Petitioner moves This Honorable Court by Order to Show Cause for an Order to Punish for Contempt of Court upon Defendant-Judgment Debtors and other enumerated relief for willful refusal to comply with judicial subpoena for witness testimony and production of documents. For the reasons set forth below, Plaintiff-Judgment Creditor's Order to Punish for Contempt of Court is GRANTED.

PROCEDURAL AND FACTUAL HISTORY

On February 6, 2013, Plaintiff commenced this action against Defendants for the following causes of action:

1-Failure to provide goods ordered in the amount of $2,600;

2-Other in the amount of $4,160.00;

3-Loss of use of property in the amount of $1,000.00;

4-Other in the amount of $7,000.00,

with interest from February 28, 2007. Defendant D. Baptiste d/b/a DEV B SERVICES on May 1, 2019 and Defendant K. Baptiste d/b/a KEMMY'S ROOFING on April 27, 2019 were both served by substitute service with subpoena titled "Judicial Subpoena (Duces Tecum)"¹ dated March 29, 2019, commanding personal appearance for deposition testimony as well as for the production of certain enumerated documents, books, papers and records, clearly and unequivocally stating that failure to appear and comply may lead to imprisonment:

THIS SUBPOENA REQUIRES YOUR PERSONAL APPEARANCE AT THE TIME AND PLACE SPECIFIED. FAILURE TO APPEAR MAY SUBJECT YOU TO FINE AND IMPRISONMENT FOR CONTEMPT OF COURT.

Notation of Default was signed before notary under penalty of perjury indicating both Defendants failed to appear at the offices of Plaintiff's counsel on the subpoena's appointed date of June 28, 2019 and times of 2pm and 2:30pm. Consequently, Plaintiff filed Order to Show Cause to Punish Defendants for Contempt on July 9, 2019 but withdrew same at July 19, 2019 court appearance due to failure to serve motion papers upon both Defendants. Plaintiff refiled Order to Show Cause to Punish for Contempt on July 31, 2019, which is the instant matter before this court. Pursuant to directive of Appellate Division Second Department, contempt hearing was ordered for November 19, 2019.² Notwithstanding Defendants failure to appear, Plaintiff argued its motion for Punishment Order at the contempt hearing.

DISCUSSION

"Refusal or willful neglect of any person to obey a subpoena shall each be punishable as a contempt of court" ( CPLR 5251 ). Contempt punishment is a rather drastic punitive enforcement tool statutorily bestowed upon courts in both criminal and civil jurisdictions from the very creation of the judicial system from the King's Bench.³ Consistent with court's inherent powers to punish parties for failure to adhere and comply to court's mandates and to preserve the court's authority over the conduct of private parties as in civil matters, or society at large, to wit, The People , as in criminal matters. To so do, there must be some teeth, some stick to the court's enforcement powers. Contempt punishment is that enforcement tool statutorily provided to the courts with the teeth and the stick to assert its power to demand that its mandates be carried out by the contemnor. Contempt punishment, however, is not so readily granted without the utmost of fastidious due diligence and due deliberation by the courts, particularly in the context of civil matters. Contempt punishment is a crime in and of itself and therefore is punished within the penal system just as any other crime, which carries with it the imposition of a sentence of incarceration to the contemnor. It is for that reason, that courts are reluctant to impose contempt punishment sentencing, whether by fine or more so drastic by a period of incarceration, particularly in civil matters. Nevertheless, such sentencing for contempt punishment carries the weight and gravitas that is sometimes required upon recalcitrant contemnors.

Although governed by distinct statutory constructs, contempt punishment for disobeying a subpoena in both the civil and criminal jurisdictions are the same rules, protocols, processes and remedies.⁴ Nevertheless, courts exercise an even higher level of due diligence and due deliberation where the underlying civil matter is for enforcement of money judgments. It is quite evident why the more drastic sentence of incarceration is so much more problematic to the courts in such an instance⁵ . Nevertheless, contemnors that intentionally flout civil court judicial mandates, as is a subpoena,⁶ must be punished by the court in its power to regulate conduct within the judicial system. Otherwise, we would foster an anarchic society where courts would be devoid of authority to regulate behavior and conduct of persons. The judiciary branch of government is tasked with the enforcement of the legislative's branch duly circumscribed codified laws of behavior and conduct of its people. Therefore, after a court provides some level of latitude to the contemnor, there comes a watershed moment when the civil court, no matter how reluctantly it may find itself, must indeed exercise its punishment enforcement powers of contempt with all its full encompassing ramifications and consequences thereto. Indeed, there are accelerating harsh consequences to ensure that contemnors in civil actions truly comprehend the gravitas that is generally inherent in criminal matters. Not so, in civil jurisdictions. Contemnors appear to trivialize civil matters as of no moment and its mandates as a subpoena may be unheeded and flouted without consequence thereto because it is not criminal. However, failure to comply with the judicial mandate of a subpoena in civil matters clearly states that not merely fines but also sentence of imprisonment is a consequence pursuant to CPLR 2308 (a) :

"Failure to comply with a subpoena issued by a judge, clerk or officer of the court shall be punishable as a contempt of court. If the witness is a party the court may also strike his or her pleadings. A subpoenaed person shall also be liable to the person on whose behalf the subpoena was issued for a penalty not exceeding one hundred fifty dollars and damages sustained by reason of the failure to comply. A court may issue a warrant directing a sheriff to bring the witness into court. If a person so subpoenaed attends or is brought into court, but refuses without reasonable cause to be examined, or to answer a legal and pertinent question, or to produce a book, paper or other thing which he or she was directed to produce by the subpoena, or to subscribe his or her deposition after it has been correctly reduced to writing, the court may forthwith issue a warrant directed to the sheriff of the county where the person is, committing him or her to jail, there to remain until he or she submits to do the act which he or she was so required to do or is discharged according to law. Such a warrant of commitment shall specify particularly the cause of the commitment and, if the witness is committed for refusing to answer a question, the question shall be inserted in the warrant."

The judicial subpoena must explicitly, in writing, state the specific commands being mandated, and only disobedience of that explicit written command shall be the subject to the very drastic punishment for contempt of court (see, Application of Mullen , 177 Misc. 734, 31 N.Y.S.2d 710, 1941 N.Y. Misc. LEXIS 2442 ). Furthermore, Judiciary Law § 753A-A.5 likewise bestows upon a court of record the power to punish, "by fine and imprisonment, either a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action may be defeated, impaired, impeded, or prejudiced, in [the case of] 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 witness ." It is well established in the Second Department that the "mere act of disobedience is sufficient to sustain a finding of civil contempt where the record reveals that such disobedience was calculated to or actually did defeat, impair, impede, or prejudice the plaintiff's rights" ( Kaywood v. Cigpak, Inc. , 258 A.D.2d 623, 685 N.Y.S.2d 770, 1999 N.Y. Slip Op. 01623 [2d Dept. 1999], citing Yeshiva Tifferes Torah v. Kesher International Trading Corp. , 246 A.D.2d 538, 667 N.Y.S.2d 759 [2d Dept. 1998] ; see also Oppenheimer v. Oscar Shoes , 111 A.D.2d 28, 488 N.Y.S.2d 693 [1st Dept. 1985] ; see also McNulty v. McNulty , 81 A.D.2d 581, 437 N.Y.S.2d 438 [2d Dept. 1981] ). A hearing may be ordered by the court to determine whether the "rights or remedies of a party to civil action may be defeated, impaired, impeded or prejudiced by any disobedience to lawful mandate of court" ( Great Neck Pennysaver v. Central Nassau Pubs. , 65 A.D.2d 616, 409 N.Y.S.2d 544 [2d Dept. 1978] ). Therefore, a court should not decide on motion for contempt punishment without a hearing. Additionally, disobedience of a subpoena is further provided for pursuant to CPLR 5251, "refusal or willful neglect of any person to obey a subpoena shall each be punishable as a contempt of court."

CPLR Article 52 more specifically addresses the use of post-judgment judicial subpoenas for the enforcement of money judgments. Wherefore: "Although the contempt punishment is not available for the general enforcement of money judgments it does serve as the sanction to implement several of the devices that Article 52 of the CPLR offers to aid in the money judgment enforcement process ."⁷ Contempt punishment is...