Cadlerock Joint Venture, L.P. v. Forde

2017 NY Slip Op 5416, 152 A.D.3d 483, 54 N.Y.S.3d 878

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 5, 2017
• Docket: 2016-02789
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Suffolk County (Joseph C. Pastoressa, J.), dated August 20, 2014. The order denied the plaintiff’s motion pursuant to CPLR 2308 (a), in effect, for the issuance of a warrant of arrest to bring the defendant before the Supreme Court, upon his alleged failure to comply with a postjudgment judicial subpoena duces tecum dated October 23, 2013, and an order of contempt of that court dated March 6, 2014.

Ordered that the order dated August 20, 2014, is affirmed, with costs.

Contrary to the plaintiff’s contention, the Supreme Court providently exercised its discretion in denying the plaintiff’s motion pursuant to CPLR 2308 (a), in effect, for the issuance of a warrant of arrest to bring the defendant before the Supreme Court, upon his alleged failure to comply with a postjudgment judicial subpoena duces tecum dated October 23, 2013, and an order of contempt of that court dated March 6, 2014 (see Rackowicz v Feldman, 22 AD3d 553, 553-554 [2005]). CPLR 2308 (a) sets forth the penalties applicable to the disobedience of a judicial subpoena. The available penalties include the issuance of “a warrant directing a sheriff to bring the witness into court” (CPLR 2308 [a]). Here, the court declined to issue such a warrant, finding that the plaintiff could avail itself of “all other remedies pursuant to the CPLR to collect” a judgment in favor of the plaintiff and against the defendant. We find no basis in the record to disturb that determination.

Rivera, J.P., Sgroi, Miller and Brathwaite Nelson, JJ., concur.