RACINES v. SON (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Cassandra A. Johnson, J.), entered October 11, 2024.  The order denied the plaintiffs' unopposed motion to hold the defendant Billy Vivar Sanchez in civil contempt for failure to comply with a subpoena ad testificandum.

ORDERED that the order is affirmed, without costs or disbursements.

On April 10, 2020, the plaintiff Giancina Racines allegedly was injured at a pizzeria operated by the defendant Elmhurst Famous Pizza Corp. when the defendant Billy Vivar Sanchez, an employee at the time, accidentally struck her with a knife.  Thereafter, the plaintiffs commenced this action, inter alia, to recover damages for personal injuries.

In an order entered October 20, 2023, the Supreme Court granted the plaintiffs' unopposed motion for leave to enter a default judgment against Sanchez.  Thereafter, the plaintiffs allegedly served a subpoena ad testificandum on Sanchez (hereinafter the subpoena), directing him to appear as a witness for a deposition.

After Sanchez failed to appear for the deposition, the plaintiffs moved, without opposition, to hold Sanchez in civil contempt for failure to comply with the subpoena.  In an order entered October 11, 2024, the Supreme Court denied the motion.  The plaintiffs appeal.

“To prevail on a motion to punish for civil contempt, the movant must establish by clear and convincing evidence:  (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the party against whom contempt is sought disobeyed the order, (3) that the party who disobeyed the order had knowledge of its terms, and (4) that the movant was prejudiced by the offending conduct” (Madigan v Berkeley Capital, LLC, 205 AD3d 900, 905 [internal quotation marks omitted];  see Judiciary Law § 753[A];  El–Dehdan v El–Dehdan, 26 NY3d 19, 29;  Thompson v Pollack, 59 AD3d 525, 525 see also CPLR 2308[a];  Matter of Ling v Sans Souci Owners Corp., 187 AD3d 755, 756).

“The burden of proof is on the proponent of the contempt motion, and the contempt must be established by clear and convincing evidence” (Rozenberg v Perlstein, 200 AD3d 915, 918 [internal quotation marks omitted] ).  “Where the movant makes that showing, the burden shifts to the alleged contemnor to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order” (id. [internal quotation marks omitted] ).  “A motion to punish a party for civil contempt is addressed to the sound discretion of the [motion] court” (Savel v Savel, 153 AD3d 872, 873).

Here, the Supreme Court providently exercised its discretion in denying the plaintiffs' motion to hold Sanchez in civil contempt for failure to comply with the subpoena (see Schiller v Town of Ramapo, 202 AD3d 1020, 1022;  Bongiorno v Di Frisco, 196 AD3d 452, 455).  The plaintiffs failed to establish, by clear and convincing evidence, that Sanchez's failure to appear for the deposition was calculated to or actually did defeat, impair, or prejudice the plaintiffs' rights (see Schiller v Town of Ramapo, 202 AD3d 1020, 1022;  Bongiorno v Di Frisco, 196 AD3d at 455).

BARROS, J.P., WARHIT, TAYLOR and QUIRK, JJ., concur.