KAYWOOD v. CIGPAK INC

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

Jack KAYWOOD, et al., appellants, v. CIGPAK, INC., respondent, et al., defendant.

Decided: February 22, 1999

FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN and LEO F. McGINITY, JJ. Michael B. Schulman & Associates, P.C., Plainview, N.Y. (Philip Y. Braginsky of counsel), for appellants. Maqsood H. Siddiqui, Garden City, N.Y. (Joseph C. Angelo of counsel), for respondent.

In an action to recover for goods sold and delivered, the plaintiff appeals from an order of the Supreme Court, Nassau County (Winslow, J.), entered December 17, 1997, which (1) granted the motion of the defendant Cigpak, Inc., pursuant to CPLR 5015, to vacate a judgment of the same court, dated August 27, 1997, entered against it upon its default in answering, and (2) denied the plaintiff's motion to hold that defendant in contempt for failure to comply with a deposition subpoena.

ORDERED that the order is reversed, on the law, with costs, the motion of the defendant Cigpak, Inc., is denied, the judgment is reinstated, the plaintiff's motion to hold the defendant Cigpak, Inc., in contempt is granted, and the matter is remitted to the Supreme Court, Nassau County, to impose an appropriate sanction on the defendant Cigpak, Inc., and to direct it to appear by an officer, director, shareholder, or agent for a deposition on a date certain.

 The defendant Cigpak, Inc. (hereinafter Cigpak), was not entitled to vacatur of the judgment entered against it upon its default in answering since it failed to refute the prima facie evidence of the process server's affidavit that it was properly served on July 7, 1997, by personal service of process upon its president, the codefendant, Rashid Iqbal (see, CPLR 311[a][1];  CPLR 5015[a];  Wieck v. Halpern, 255 A.D.2d 438, 680 N.Y.S.2d 599;  Simmons First Natl. Bank v. Mandracchia, 248 A.D.2d 375, 669 N.Y.S.2d 646;  Manhattan Sav. Bank v. Kohen, 231 A.D.2d 499, 647 N.Y.S.2d 256).

 The Supreme Court improvidently exercised its discretion in denying the plaintiff's motion to hold Cigpak in contempt for its failure to submit to an examination of a judgment debtor since 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” (Yeshiva Tifferes Torah v. Kesher Intl. Trading Corp., 246 A.D.2d 538, 667 N.Y.S.2d 759;  see, Oppenheimer v. Oscar Shoes, 111 A.D.2d 28, 488 N.Y.S.2d 693).

Cigpak's remaining arguments are either improperly raised for the first time on appeal or without merit.

MEMORANDUM BY THE COURT.

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