Napoli v. Bern

• Decision Date: 28 October 2021
• Docket Number: 2021-32092,Index 161423/2015
• Parties: MARI E. NAPOLI, Plaintiff, v. MARC JAY BERN, CLIFFORD ROBERTS, THE PARKSIDE GROUP, LLC, BR1AN BRICK, Defendant(s). Motion Seq. Nos. 037, 038, 039, 040
• Court: New York Supreme Court

MARI E. NAPOLI, Plaintiff,
v.
MARC JAY BERN, CLIFFORD ROBERTS, THE PARKSIDE GROUP, LLC, BR1AN BRICK, Defendant(s).

Motion Seq. Nos. 037, 038, 039, 040

No. 2021-32092

Index No. 161423/2015

Supreme Court, New York County

October 28, 2021

Unpublished Opinion

MOTION DECISION

MOTION DATE 02/17/21, 02/19/21, 02/22/21, 03/04/21.

DECISION & ORDER

PRESENT: HON. KATHYJ, KING, J.

The following e-filed documents, listed by NYSGEF document number (Motion 037) 1106, 1107, 1108, 1109, 1110, 1111, 1112, 1113, 1114, 1115, 1116, 1117, 1118, 1119, 1120, 1121, 1122, 1123, 1124, 1125, 1126, 1127, 1128, 1129, 1130, 1140, 1141, 1164, 1171, 1172, 1173, 1174, 1175, 1176, 1177, 1178, 1179, 1180, 1181, 1182, 1183, 1184, 1185, 1186, 1187, 1188, 1207, 1211 were read on this motion to/for PUNISH FOR CONTEMPT.

The following e-filed documents, listed by NYSCEF document number (Motion 038) 1131, 1132, 1133, 1134, 1135, 1136, 1137, 1138, 1139, 1142 were: read on this motion to/for QUASH SUBPOENA, FIX CONDITIONS

The following e-filed documents, listed by NYSCEF document number (Motion 039) 1143, 1144, 1145, 1146, 1147, 1148, 1149, 1150, 1151, 1152, 1153, 1154, 1155, 1156, 1157, 1158, 1159, 1160, 1161, 1162, 1163, 1165, 1166, 1168; 1170, 1208, 1209, 1210 were read on this; motion to/for CONTEMPT.

The following e-fiied documents, listed by NYSCEF document number (Motion 040) 1189, 1190, 1191, 1192, 1193, 1194, 1195, 1196, 1197, 1198, 1199, 1200, 1201, 1202, 1203, 1204, 1205, 1206, 1212, 1213, 1214, 1215, 1216, 1217, 1218, 1219, 1220, 1221, 1222, 1223, 1224, 1225, 1226, 1227, 1228, 1229, 1230, 1231, 1232, 1233, 1234, 1235, 1236, 1237, 1238, 1239, 1240, 1241, 1242, 1243, 1244, 1245, 1246, 1247, 1248, 1249, 1250, 1251, 1252, 1253, 1254, 1255, 1256, 1257 were read on this motion to/for RENEW/REARGUE/RESETTLE/RECONSIDER .

Upon the foregoing papers, Motion Sequence Numbers 37, 38, 39, and 40^[1] are hereby consolidated for purposes of disposition.

1

BACKGROUND

The underlying action arises from the alleged.defamation claims of plaintiff asserted in her third amended verified complaint. In sum, plaintiff claims that defendants published several defamatory remarks arising from her husband, non-party Paul Napoli's ("Napoli") alleged polyamorous relationship with non-parties Vanessa Dennis and Ivarta Albijanic Ross ("Ross"). Gn August 10, 2020, defendants served Ross with a subpoena duces tecum and ad testificandum .regarding the alleged relationship with plaintiff s: husband and/or Vanessa Dennis. Subsequently, defendants served Napoli with a subpoena duces tecum and gd testificandum ("the Napoli Subpoena") via "nail and mail" service at the Melville office of Napoli Shkoinik.

Thereafter, both Ross ^[2]and Napoli moved for an order quashing their respective subpoenas. Napoli argued, over objection, that the NapOli Subpoena Was improperly served and, thus, jurisdictional]y defective. Oral argument on the motions Was heard on December 10, 2020 wherein the court (Marin, J.) deemed the Napoli Subpoena"to be served and found that jurisdiction had been obtained (Transcript at 115). The court also authorized the service of the Napoli Subpoena on Napoli's counsel, Lucas Nikas ("Nikas"). On December 11, 2020, the court issued an order, denying the Ross^[3] and Napoli motions to quash. Pursuant to said order, On January 5, 2021, ^[4]defendants served Nikas with an Amended Notice of Deposition directing Napoli to appear for a deposition On February 5, 2021. Neither Napoli or Nikas appeared at the February 5, 2021 deposition. Additionally, while Ross' deposition was initially scheduled for January 26, 2021, that date was subsequently revoked when counsel for Ross advised that she would not appear until Napoli's:deposition had been completed.

2

On or about February 17, 2021, defendants Marc Jay Bern, The Parkside Group, LLC, Brian Brick and Clifford S. Robert (collectively "defendants") moved by order to show cause, pursuant to CPLR 2308(a) and Sections 753(A)(3), 753(A)(5), 756, and 773 of the New York Judiciary Law, for an order (Motion Seq. 37): (i) why non-party witness Napoli should not beheld in contempt for knowingly and willfully refusing to appear for his deposition pursuant to a subpoena ad testificandum and subsequent orders;of the court directing Napoli to appear for said...