Oppenheimer v. Oscar Shoes, Inc.
| Citation | 488 N.Y.S.2d 693,111 A.D.2d 28 |
| Parties | Eric J. OPPENHEIMER, Receiver, Plaintiff-Judgment Creditor-Respondent, v. OSCAR SHOES, INC., Defendant-Judgment Debtor. Alan J. Pomerantz, Esq., Appellant. |
| Decision Date | 07 May 1985 |
| Court | New York Supreme Court Appellate Division |
T. Lagrotta, Little Neck, for plaintiff-judgment creditor-respondent.
S.V. Slotnik, New York City, for defendant-judgment debtor.
Before KUPFERMAN, J.P., and SULLIVAN, ASCH, KASSAL and ELLERIN, JJ.
Order of the Supreme Court, Bronx County, entered December 11, 1984, adjudging non-party witness, a New York attorney, guilty of contempt pursuant to CPLR 5251, for failure to answer questions sought under a subpoena served in connection with a supplementary proceeding under CPLR 5224(a)(1), is reversed on the law without costs or disbursements, and the matter remanded to Special Term for an express finding as to whether or not the attorney's conduct "was calculated to, or actually did, defeat, in part, impede or prejudice the rights or remedies of the Receiver."
On October 29, 1973, plaintiff, the Receiver in foreclosure of a parcel of property commenced an action against Oscar Shoes, Inc. (hereinafter "Oscar Shoes") seeking a judgment for rent. The appellant, Pomerantz, was the attorney for Oscar Shoes, among others. Thereafter, in a supplementary proceeding, plaintiff served a subpoena upon the appellant to aid in the collection of the judgment. Although Pomerantz answered most of the questions, he refused to answer seventeen of them, alleging that they dealt with confidential communications.
In addition to questions concerning Oscar Shoes, directly, counsel for plaintiff asked questions about a concern called Benco, as well as the principals of both Oscar Shoes and Benco, inasmuch as plaintiff believed that Benco had received substantial assets from Oscar Shoes and hence would also be responsible for the judgment debt. Upon the failure of Pomerantz to answer these questions, the Receiver for plaintiff moved to punish Pomerantz for contempt. Special Term, thereupon, held him in contempt for failure to answer the questions and fined him $250.
The order appealed from must be deemed defective because it does not satisfy the requirements of the Judiciary Law. In a case of civil contempt, the Court must expressly find that the person's actions were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party to a civil proceeding (Judiciary Law, sec. 753; Powell v. Clauss, 93 A.D.2d 883, 461 N.Y.S.2d 413). There was no such determination made by Special Term. Pursuant to Judiciary Law, sec. 770, a recital to that effect would be necessary for an adjudication of contempt (see Federal Deposit Insurance Corp. v. Richman, 98 A.D.2d 790, 792, 470 N.Y.S.2d 19).
Nevertheless, Special Term was correct in rejecting appellant's contention...
To continue reading
Request your trial
-
State v. David A. Brogno, M.D., Alfred Becker, M.D., Albert H. Zucker, M.D., Richard L. Roth, M.D. Seymour H. Lutwak, M.D., Hudson Heart Assocs., PC
...of Priest v. Hennessy, 51 N.Y.2d 62, 69 (1980); Cutrone v. Gaccione, 210 A.D.2d 289, 291 (2nd Dept. 1994); Oppenheimer v. Oscar Shoes, Inc., 111 A.D.2d 28, 29 (1st Dept. 1985); Rumrill v. Hoyt, Inc. v. Perri, 97 A.D.2d 951 (4th Dept. 1983).The attorney-client privilege may only be properly-......
-
Cutrone v. Gaccione
...not protected by any privilege (see, Matter of Priest v. Hennessy, 51 N.Y.2d 62, 431 N.Y.S.2d 511, 409 N.E.2d 983; Oppenheimer v. Oscar Shoes, 111 A.D.2d 28, 488 N.Y.S.2d 693; Rumrill-Hoyt, Inc. v. Perri, 97 A.D.2d 951, 468 N.Y.S.2d 754; People v. Belge, 59 A.D.2d 307, 399 N.Y.S.2d 539; Mat......
-
Odimgbe v. Dockery
...prejudiced, defeated or impeded the rights of the other party. Matter of McCormick v. Axelrod, supra; Oppenheimer v. Oscar Shoes, 111 A.D.2d 28, 488 N.Y.S.2d 693 (1st Dept.1985). Findings of The Court finds that the Respondent Dockery is a proper party to this proceeding, and that the Court......
-
Richards v. Estate of Kaskel
...or actually did defeat, impair, impede, or prejudice the rights or remedies" of a party to a civil proceeding. (Oppenheimer v. Oscar Shoes, 111 A.D.2d 28, 29, 488 N.Y.S.2d 693; Matter of McCormick v. Axelrod, supra, 59 N.Y.2d at 582-583, 466 N.Y.S.2d 279, 453 N.E.2d 508; Judiciary Law § 753......