Yalkowsky v. Yalkowsky

• Decision Date: 11 April 1983
• Citation: 93 A.D.2d 834,461 N.Y.S.2d 54
• Parties: Stanley YALKOWSKY, Appellant, v. Deanne YALKOWSKY, Defendant, Irving Bank Corporation et al., nonparty Respondents.
• Court: New York Supreme Court — Appellate Division

Page 54

461 N.Y.S.2d 54

93 A.D.2d 834

Stanley YALKOWSKY, Appellant, v. Deanne YALKOWSKY, Defendant Irving Bank Corporation et al., nonparty Respondents.

Supreme Court, Appellate Division Second Department.

April 11, 1983.

Stanley Yalkowsky, appellant pro se.

Winthrop, Stimson, Putnam & Roberts, New York City (Robert J. Sussman, New York City, of counsel), for nonparty respondent Irving Bank Corp.

Neale & Wilson & Gardella, Scarsdale (J. Henry Neale, Jr., Scarsdale, of counsel), for nonparty respondents Scarsdale Nat. Bank and Trust Co., Thomas Kavanaugh, Will Irick, John Bruno, Barbara Justo and Sherman Petrie.

Before GIBBONS, J.P., and THOMPSON, BRACKEN and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, plaintiff husband appeals from an order of the Supreme Court, Westchester County, dated October 15, 1981, which denied his motion (1) to adjudge nonparty respondents, Scarsdale National Bank, the Irving Bank Corporation, and certain named individuals in contempt for failure to comply with subpoenas duces tecum, (2) to require that Scarsdale National Bank provide an affidavit reciting what information had been furnished pursuant to the subpoenas in question, what information cannot be found, what information it refuses to furnish and what information it is willing to furnish, and (3) to compel Scarsdale National Bank and Irving Bank Corporation to comply with all the subpoenas served upon them.

Order modified, on the law, by deleting the provision denying the motion with respect to respondent Scarsdale National Bank and substituting therefor a provision granting the second branch thereof requiring it to provide an affidavit concerning the subpoenaed documents. As so modified, order affirmed, without costs or disbursements, and matter remitted to the Supreme Court, Westchester County, for a hearing on the first and third branches of plaintiff's motion in accordance herewith, to be held after service upon plaintiff of the affidavit on behalf of respondent Scarsdale National Bank concerning the subpoenaed information, which affidavit shall be served within 30 days after service upon said bank of a copy of the order to be made hereon, with notice of entry.

In order to locate assets of defendant, the former wife of the plaintiff, which plaintiff alleges were secreted in accounts in Scarsdale National Bank (hereinafter Scarsdale Bank), in her name and in the name of another individual, Americo Napolitano, and the companies Napolitano owned, plaintiff served a series of nine subpoenas duces tecum, beginning in May, 1979, on Scarsdale Bank and various officers and employees of that bank. Respondent Scarsdale Bank produced a series of documents relating to the accounts about which plaintiff sought information. Plaintiff alleged, however, that important documents were missing from the items produced by the bank and, by order to show cause dated September 4, 1981, moved, inter alia, to punish it and its parent corporation, respondent Irving Bank Corporation (hereinafter Irving Bank), for contempt.

In denying the motion, Special Term erroneously stated that there must be a willful refusal to comply with a court order before a party may be adjudged to be in civil contempt. Intent or willfulness is not required to hold a party in contempt for disobeying a court order or subpoena (see Aspira of New York v. Board of Educ. of City of New York, 423 F.Supp. 647, 654; Lasky v. Quinlan, 419 F.Supp. 799, 807; Matter of Sentry Armored Courier Corp. v. New York City Off-Track Betting Corp., 75 A.D.2d 344, 429 N.Y.S.2d 902; Great Neck Pennysaver v. Central Nassau Pubs., 65 A.D.2d 616, 409 N.Y.S.2d 544). In order to hold a party in civil contempt for disobeying a subpoena, "[i]t is not necessary that such disobedience be deliberate; rather the mere act of disobedience, regardless of its motive, is sufficient to sustain a finding of civil contempt if such disobedience defeats, impairs, impedes or prejudices the rights of a party" (Great Neck Pennysaver v. Central Nassau Pubs., supra, pp. 616-617, 409 N.Y.S.2d 544; see, also, Judiciary Law, § 753, subd. A).

The party making the application for a civil contempt citation, in this case plaintiff, has the overall burden of proof to establish, by clear and convincing evidence, that the court order or subpoena has been violated (see...