TORAH v. KESHER INTERNATIONAL TRADING CORP (1998)

In an action to recover the proceeds of a promissory note, in which a judgment in favor of the plaintiff and against the defendants was entered in the Supreme Court, Kings County (De Matteo, J.H.O.) on October 29, 1992, the plaintiff appeals from an order of the same court (Held, J.), dated August 20, 1997, which (1) denied its motion to hold the defendant David Kahan and nonparty witnesses Edith Kahan and Sara Kahan in contempt for failure to comply with deposition subpoenas, and (2) granted, in part, the cross motion by the defendant David Kahan to quash or modify the subpoenas.   The plaintiff's notice of appeal from a decision dated January 15, 1997, is deemed a premature notice of appeal from the order (see, CPLR 5520[c] ).

ORDERED that the order is modified by (1) deleting therefrom the first decretal paragraph and substituting therefor a provision granting the motion to the extent that the defendant David Kahan is held in contempt, and otherwise denying the plaintiff's motion;  and (2) deleting therefrom the second, third, and fourth decretal paragraphs and substituting therefor a provision denying that branch of the cross motion which was to quash or modify the subpoena served upon David Kahan, and otherwise granting the cross motion;  as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, to impose an appropriate sanction on David Kahan and to direct him to appear for a deposition on a date certain.

 The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff's motion which was to hold the defendant David Kahan in contempt for his failure to submit to an examination as a judgment debtor (see, Dubroff v. Norych & Tallis, 220 A.D.2d 480, 632 N.Y.S.2d 165).   Kahan's conduct over the past five years demonstrates his disregard for court orders and process.   While he claims no intent to delay or obstruct the plaintiff's efforts to enforce court orders, the mere act of disobedience is sufficient to sustain a finding of civil contempt where, as here, the record reveals that such disobedience was calculated to or actually did defeat, impair, impede, or prejudice the plaintiff's rights (see, Oppenheimer v. Oscar Shoes, 111 A.D.2d 28, 488 N.Y.S.2d 693;  Yalkowsky v. Yalkowsky, 93 A.D.2d 834, 461 N.Y.S.2d 54;  Great Neck Pennysaver v. Central Nassau Pubs., 65 A.D.2d 616, 409 N.Y.S.2d 544).   Furthermore, the subpoena served upon David Kahan clearly sought “matter relevant to satisfaction of the judgment” against him (see, CPLR 5223), and there are no grounds for invoking the court's authority pursuant to CPLR 5240 to quash or modify the subpoena.   Accordingly, those provisions of the order which, in effect, served to delay or place limitations on the plaintiff's right to depose David Kahan are deleted.

 The Supreme Court, however, properly exercised its discretion in denying that branch of the plaintiff's motion which was to hold nonparties Edith Kahan and Sara Kahan in contempt for their failure to appear for depositions (see, Dickson v. Ferullo, 96 A.D.2d 745, 465 N.Y.S.2d 328).  The plaintiff failed to establish, by clear and convincing proof, that the subpoenas in question were violated (see, Yalkowsky v. Yalkowsky, supra).  Although the record reveals that the plaintiff specifically notified David Kahan that his deposition was scheduled to be held on the adjournment date of November 7, 1996, the plaintiff failed to establish that a specific adjournment date was set for the nonparties' depositions.

 Finally, the court has broad discretionary power under CPLR 5240 to control and regulate enforcement procedures to prevent “unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” (Guardian Loan Co. v. Early, 47 N.Y.2d 515, 519, 419 N.Y.S.2d 56, 392 N.E.2d 1240;  see also, Cook v. H.R.H. Constr. Corp., 32 A.D.2d 806, 302 N.Y.S.2d 364).   Under the circumstances of this case, and in view of the fact that the information and documents sought from the nonparties were essentially duplicative of that sought from David Kahan, the Supreme Court did not err in directing the plaintiff to apply to the court to take the depositions of the nonparties after the deposition of David Kahan was completed.

MEMORANDUM BY THE COURT.