ARKO MB LLC v. NEEL III

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Supreme Court, Appellate Division, First Department, New York.

ARKO MB LLC, Plaintiff–Appellant, v. Robert W. O'NEEL, III, et al., Defendants–Respondents.

Decided: May 29, 2012

FRIEDMAN, J.P., SWEENY, RENWICK, FREEDMAN, ABDUS–SALAAM, JJ. Law Offices of Neil Pasmanik, Brooklyn (Neil Pasmanik of counsel), for appellant.

Order, Supreme Court, New York County (Debra A. James, J.), entered September 20, 2011, which denied plaintiff judgment creditor's motion pursuant to CPLR 5251 to hold individual defendant judgment debtor in contempt of court, unanimously affirmed, without costs.

 Plaintiff failed to demonstrate with clear and convincing evidence that defendant had refused or willfully neglected to obey the subpoenas (see CPLR 5251;  Gray v. Giarrizzo, 47 A.D.3d 765, 766, 850 N.Y.S.2d 549 [2008];  see generally Pereira v. Pereira, 35 N.Y.2d 301, 308, 361 N.Y.S.2d 148, 319 N.E.2d 413 [1974] ).   Although defendant's answers to plaintiff's questions in the deposition could have been more detailed, defendant provided substantial information on his income and holdings.   Moreover, some of the questions involved complex financial transactions that occurred approximately four years before the deposition.   As such, it cannot be said that defendant's answers were evasive or nonresponsive (cf. Quantum Heating Servs. v. Austern, 100 A.D.2d 843, 844, 474 N.Y.S.2d 81 [1984] ).   Nor did plaintiff show, by clear and convincing evidence, that the documents it sought existed and were in defendant's possession at the time the subpoenas were served (see Gray, 47 A.D.3d at 766, 850 N.Y.S.2d 549;  see also Tener v. Cremer, 89 A.D.3d 75, 78, 931 N.Y.S.2d 552 [2011] ).

Finally, we note that plaintiff may seek a further EBT of defendant.