IN RE: the Application of Mimi GROTTO

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IN RE: the Application of Mimi GROTTO, Petitioner for an order pursuant to C.P.L.R. § 3119(e) quashing a subpoena served on her by local counsel for v. Bernard J. CARL, Respondent.

No. 102162/2012.

Decided: October 05, 2012

Jeffery M. Rosenberg Esq., Rosenberg & Rosenberg LLP, New York, for petitioner. Christine Tramontano Esq., Holland & Knight LLP, New York, for respondent.

Petitioner Mimi Grotto, a Connecticut resident employed in New York, seeks to quash or stay enforcement of a subpoena, C.P.L.R. § 3119(e), issued and served on her by respondent pursuant to C.P.L.R. § 3119(b) and (c), the procedures for interstate disclosure effective January 1, 2011. C.P.L.R. § 3119(e) requires that a petition or motion to quash or stay a subpoena under § 3119 comply with New York statutes and regulations. Matter of New York Counsel for State of Cal. Franchise Tax Bd., 33 Misc.3d 500, 506–507, 929 N.Y.S.2d 361 (Sup.Ct. Westchester Co.2011).

Respondent judgment creditor's subpoena seeks disclosure relevant to the satisfaction of an unsatisfied California judgment, entered also in New York, for $2,089,749.99 against deceased judgment debtor Patrick Grotto, petitioner's former husband from whom she was divorced. C.P.L.R. §§ 5223, 5402. Based on respondent's deposition of Patrick Grotto's son, respondent believes Patrick Grotto may have transferred assets to his former wife before committing suicide July 18, 2011. He died in Maryland, so his estate would be the subject of a probate proceeding there.

C.P.L.R. § 5208 provides that no “enforcement procedure” may be undertaken regarding any debt owed by or property interest of the judgment debtor:

except upon leave of the surrogate's court which granted letters testamentary or letters of administration upon the estate. If such letters have not been granted within eighteen months after the death, leave to ․ undertake such enforcement procedure may thereafter be granted, upon motion of the judgment creditor ․, by any court ․ in which the enforcement procedure could be commenced.

Respondent's subpoena seeking disclosure relevant to the satisfaction of an unsatisfied judgment against the deceased judgment debtor, C.P.L.R. § 5223, is an “enforcement procedure,” C .P.L.R. § 5208, under C.P.L.R. Article 52, pertaining to enforcement of monetary judgments, and C.P.L.R. § 5208 specifically. E.g., Stern v. Carlin Communications, 210 A.D.2d 110, 111, 620 N.Y.S.2d 344 (1st Dep't 1994); Buckeye Retirement Co., LLC, Ltd. v. Quattrocchi, 36 A.D.3d 641, 642, 828 N.Y.S.2d 217 (2d Dep't 2007); Matter of Lupoli, 275 A.D.2d 44, 50, 714 N.Y.S.2d 497 (2d Dep't 2000); Cornell Fed. Credit Union v. Thorpe, 199 A.D.2d 936, 937, 606 N.Y.S.2d 90 (3d Dep't 1993). C.P.L.R. § 5208 thus bars enforcement of respondent's subpoena until January 18, 2013.

Consequently, the court grants the petition to quash respondent's subpoena seeking disclosure from petitioner relevant to the satisfaction of an unsatisfied judgment against Patrick Grotto. C.P .L.R. §§ 3119(e), 5208, 5223. This decision constitutes the court's order and judgment granting the petition. This disposition is without prejudice to enforcement of a future subpoena after January 18, 2013, in a future proceeding. C.P.L.R. §§ 3119, 5208.

LUCY BILLINGS, J.

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