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Marie NAPOLI, Plaintiff, v. Marc Jay BERN, Clifford Roberts, the Parkside Group, LLC, Brian Brick, Defendants.
The following e-filed documents, listed by NYSCEF 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-filed 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.
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 Ivana Albijanic Ross (“Ross”). On 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 ad testificandum (“the Napoli Subpoena”) via “nail and mail” service at the Melville office of Napoli Shkolnik.
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, jurisdictionally 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.
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 be held 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 deposition; (ii) why Napoli should not be compelled to appear at a remote deposition within twenty-one (21) days of this Court's order on this application; (iii) why Napoli should not be liable to defendants for their costs, disbursements, and reasonable attorneys’ fees incurred as a result of his contempt; (iv) why Napoli should not be liable to defendants for the statutory penalty of $150.00 due to his contempt of court; and (v) why service of this application for contempt should not be ordered upon Napoli's attorney of record, Luke Nikas, Esq. via email. Napoli opposes the requested relief.
Defendants also move for the identical relief set forth in items i-iv above against Ross (Motion Seq. 39), who submits opposition thereto.
Finally, Napoli moves, pursuant to Motion Seq. 40, for leave to reargue and renew the court's December 11, 2020 order denying his motion to quash (Motion Seq. 40), which defendants oppose.
The Court shall first consider Napoli's motion for leave to reargue and renew, and thereafter, determine defendants’ respective applications for contempt against Napoli and Ross.
It is well settled that a motion to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion but shall not include any matters of fact not offered on the prior motion” (CPLR 2221[d]). The Court has the discretion to determine whether to grant a motion for leave to reargue (see Barnett v Smith, 64 AD3d 669, 670 [2d Dept 2009] [internal citations omitted]. However, a motion to reargue “is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented” (Anthony J Carter, DDS PC v Carter, 64 AD3d 669 [2d Dept 2011] [internal citations omitted]).
Conversely, “[A] motion to renew shall be based upon new facts not offered on the prior motion that would change the prior determination .and shall contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221[e]  and [e] ). While there is no time limit to file a motion to renew, CPLR 2221(d)(3) provides that a motion for leave to reargue must be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry, except where good cause is shown under CPLR 2004.
In the case at bar, defendants contend that Napoli's motion to reargue is untimely since the instant motion to reargue was filed on March 4, 2021, seventy-eight days after service of the December 11, 2020 order with notice of entry on defendants. However, the record also shows that Justice Marin, the presiding judge who issued the December 11, 2020 decision, retired from the bench shortly after the decision was rendered, and that the case was re-assigned to this Court (Part 34V) in January 2021. The parties were notified of the re-assignment on February 3, 2021 via NYSCEF. Given the resulting uncertainty of the case created by these circumstances, the Court finds that Napoli has established good cause for the delay in filing the within motion. The Court also notes that upon notice of the re-assignment, Napoli's motion to re-argue was filed within 30 days. Thus, contrary to defendant's contentions, the motion is properly before the Court (see Itzkowitz v King Kullen Grocery Co., Inc., 22 AD3d 636, 638 [2d Dept 2005]).
Napoli now argues that the court's December 11, 2020 order misapplied the law and overlooked key facts in denying Napoli's motion to quash.
The Court agrees.
CPLR 2303 (a) provides that, a subpoena requiring attendance or a subpoena duces tecum shall be served in the same manner as a summons pursuant to CPLR 308. This statutory provision delineates how service of process is effectuated where an individual is physically present within the state and prescribes alternate methods of service where personal service “cannot be made” with due diligence, and authorizes “nail and mail service” whereby the process server affixes the summons to the door of the actual place of business and mails the [summons] by first class mail to the person to be served at his or her actual place of business (CPLR 308 ). An individual's “actual place of business” includes “any location that the [individual], through regular solicitation or advertisement, has held out as [their] place of business” (CPLR 308 ).
Here, after three attempts at personal service on Napoli, defendants’ process server affixed the Napoli Subpoena to the door of the Melville office of Napoli Shkolnik, PLLC at 400 Broadhollow Road, Suite 305, Melville, New York, and thereafter, mailed a copy of the Napoli Subpoena to said address. The court deemed that utilizing this method, service was effectuated on Napoli. Citing the number of cases Napoli filed on NYSCEF bearing Napoli Shklonik's Melville address in the signature block, the court reasoned that Napoli's actual place of business is in New York since these cases involved high value legal actions with a lot of plaintiffs and could involve a lot of money. Applying the law to the facts in this case, the prior court misapprehended the law, since a person's actual place of business is not a calculus of the number of transactions conducted by an individual, i.e., the number of cases filed by Napoli but rather an “actual place of business” “[is] where the person is physically present with regularity, and [that] person must be shown to regularly transact business at that location” (Selmani v City of NY, 100 AD3d 861, 861-62 [2d Dept 2012]).
While defendants, in opposition, contend that the Melville office of Napoli Shkolnik is Napoli's actual place of business pursuant to CPLR 308(6), the record establishes that Napoli was not physically present at Napoli Shkolnik nor did he hold himself out through regular solicitation or advertisement to practice law at Napoli's Shkolnik's Melville office on the dates that service of process was attempted.
Significantly, Napoli affirms that he has not been to the Melville office of Napoli Shkolnik since February 2020. Contrary to defendant's contentions, Napoli is unlike the defendant in City of New York v. EIHC Development Corp., 125 AD3d 425, 425-26 [1st Dept 2015], where the court found that service was properly made on defendant Sung's “actual place of business” because the summons was delivered on a floor of an office building that had the sign “Thomas Sung, attorney at law” outside of the elevator. Here, Marie Napoli, Paul Napoli's wife is the principal referred to in the law firm name of “Napoli Shkolnik PLLC. Paul Napoli's name is not displayed at the entrance of the Melville office. Similarly, the cases relied on by defendants, in opposition, are inapposite (see e.g., Xiao Hong Wang v. Chi Kei Li, 169 AD3d 593, 593 [1st Dep't 2019] [service of process upheld where defendant received mail or had regular physical presence at the building in question]; Gibson, Dunn & Crutcher LLP v. Global Nuclear Services and Supply, Ltd., 280 AD2d 360, 361 [1st Dept 2001] [in upholding service on defendant, the court found that defendant's legal bills, which were the basis of the underlying lawsuit, indicated 485 Madison Avenue as defendant's business address]). The Court reasoned that “[h]aving thus effectively held out 485 Madison Avenue as his business address, and induced plaintiff's reliance thereon, this defendant cannot disclaim it as his ‘actual place of business.” (Id. at 361; McCord v. Larsen, 132 AD3d 1115, 1117 [3d Dept 2015]; Robeck v. Prasad, 6 AD3d 690, 690-91 [2d Dept 2004]; Columbus Realty Inv. Corp. v. Weng-Heng Tsiang, 226 AD2d 259 [1st Dept 1996]).
While Napoli admitted that he is Of Counsel to Napoli Shkolnik, he serves in this capacity from Puerto Rico. The record establishes that Napoli is a citizen of Puerto Rico whose law firm NSPR, a Puerto Rican Limited Liability Corporation, has its principal place of business in Puerto Rico and Napoli's email signature bears NSPR's Puerto Rico address and has a telephone number with an area code of 787 (Puerto Rico). All of these contacts are listed by Napoli on his attorney registration with the New York State Unified Court System. Based on these facts, the Court finds that Napoli is not “physically present” at the Napoli Shkolnik Melville office with “regularity,” nor does he regularly transact business” at said office (Selmani, 100 AD3d at 862). The December 11, 2020 order overlooked these facts, and incorrectly determined that Napoli's actual place of business is in New York.
Similarly, the court erred in its determination that general jurisdiction had been obtained over Napoli. The case law has established that general jurisdiction may be exercised where an individual is domiciled in the state or in an exceptional case where “an individual's contacts with a forum [are] so extensive as to support general jurisdiction notwithstanding domicile elsewhere” (Magdalena v Lins, 123 AD3d 600, 601 [1st Dept 2014]). Napoli is a domiciliary of Puerto Rico, not New York, as demonstrated by his Puerto Rico issued driver's license, voter registration and business contacts, and does not have extensive contacts to support an “exceptional case” determination. Further, the Court erred in authorizing alternate service on Nikas, Napoli's counsel, which provides an additional basis for re-argument. Napoli did not authorize his counsel to accept service and his counsel did not agree to accept service of the subpoena (Broman v Stern, 172 AD2d 475 [2nd Dept 1991]). Defendants made no showing, as a matter of law, that it was impracticable to effectuate service on Napoli in Puerto Rico pursuant to CPLR 308(5). Accordingly, for all these reasons, the Court finds alternate service is not warranted pursuant to the court's December 11, 2020 order.
In support of the branch of Napoli's motion seeking renewal of the December 11, 2020 order, Napoli acknowledges that there were a number of cases on NYSCEF using the outdated New York signature block with the Melville address. A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination and shall contain reasonable justification for the failure to present such facts on the prior motion” ( CPLR 2221 (e)(2) and (e)(3)). Napoli's affidavit in support of the motion states that following the issuance of the December 11, 2020 order, he researched case filings containing the mistaken signature blocks and had change of address forms filed with his Puerto Rico address. Napoli's affidavit establishes that the change of address filings were not in his possession at the time the December 11, 2020 order was issued. Given these facts constituting new evidence, renewal is also warranted.
Based on the foregoing, Napoli's motion for leave to reargue and renew is granted in its entirety.
As to defendants’ motion for contempt, it is well settled that “[c]ontempt is a drastic remedy which should not be granted absent a clear right to the relief” (Benson Park Associates LLC v. Herman, 941 N.Y.S.2d 108, 109 3rd Dept. 2012 quoting Pinto v. Pinto, 501 N.Y.S.2d 835, 837 [1st Dept. 1986]). “Where the contemnor is not a party to the underlying action, the order to show cause must be personally served upon the accused” (Hampton v. Annal Mgmt. Co., Ltd., 646 N.Y.S.2d 227, 228 [App. Term, lst Dept. 1996] citing Long Island Trust Co. v. Rosenberg, 442 N.Y.S.2d 563, 567 [2nd Dept.1981]).
Defendant's motion for contempt against Napoli is denied as moot since the motion to quash the Napoli Subpoena is granted pursuant to the within order. As to non-party Ross, defendant's motion for contempt is denied since Ross’ subpoena was served by email and not personally served in conformance with CPLR 308.
Accordingly, it is hereby:
ORDERED that defendants’ order to show cause to hold non-party Napoli in contempt is denied (Mot. Seq. No.37); and it is further,
ORDERED that defendants’ motion to relieve non-party witness Brandon Ross, from responding to plaintiff's subpoena ad testificandum and duces tecum is denied as moot per NYSCEF Doc# 1142 (Mot. Seq. #38); and it is further,
ORDERED that defendants’ motion to hold non-party Ivana Albijanic Ross in contempt is denied (Mot. Seq. #39); and it is further,
ORDERED that Napoli's motion for leave to reargue and renew is granted in its entirety. Upon reargument and renewal, the court's December 11, 2021 order is vacated, and Napoli's motion to quash is granted (Mot. Seq. #40); and it is further,
ORDERED that the parties shall appear for a virtual status conference on February 2, 2022 at 3:30 p.m.
This constitutes the decision and order of the Court.
1. Motion Sequence Number 38 was withdrawn pursuant to NYSCEF Doc 1142
2. Ross’ motion to quash also sought a protective order.
3. Ross’ motion to quash was denied except that the order limited document production to emails, letters, notes and postcards between and among the witness and Marie Napoli, Paul Napoli or Vanessa Dennis.
4. On January 6, 2021, Nikas filed a notice of appeal from the December 11, order which is presently sub judice.
Kathy J. King, J.
Response sent, thank you
Docket No: Index No. 161423/2015
Decided: October 28, 2021
Court: Supreme Court, New York County, New York.
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