Law Office of Mark S. Helweil v. Karambelas

2024 NY Slip Op 30807(U)

• Court: New York Supreme Court, New York County
• Decided: March 13, 2024
• Status: Unpublished

Opinion

Law Office of Mark S. Helweil v Karambelas 2024 NY Slip Op 30807(U) March 13, 2024 Supreme Court, New York County Docket Number: Index No. 159060/2018 Judge: Joel M. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NEW YORK COUNTY CLERK 03/13/2024 04:45 PM INDEX NO. 159060/2018 NYSCEF DOC. NO. 233 RECEIVED NYSCEF: 03/13/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M -----------------------------------------------------------------------------------X

THE LAW OFFICE OF MARK S. HELWEIL, MARK S. INDEX NO. 159060/2018 HELWEIL,

Plaintiffs, MOTION DATE 12/18/2023

-v- MOTION SEQ. NO. 008

ANDREA KARAMBELAS, DECISION + ORDER ON Defendant. MOTION

-----------------------------------------------------------------------------------X

HON. JOEL M. COHEN:

The following e-filed documents, listed by NYSCEF document number (Motion 008) 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232 were read on this motion to/for COMPEL POST-JUDGMENT DISCLOSURE/CONTEMPT .

The Law Office of Mark S. Helweil and Mark S. Helweil (together, “Plaintiffs”) move to

compel post-judgment disclosure, pursuant to Plaintiffs’ service of (1) a post-judgment

information subpoena and (2) a notice of deposition upon Defendant Andrea Karambelas.

Plaintiffs also move for contempt, alleging Defendant failed to comply with a properly served

information subpoena. For the reasons stated on the record after oral argument on February 9,

2024 (NYSCEF 232), as further described below, the motion is granted in part.

1. Motions to Compel

CPLR 5223 permits a judgment creditor to “compel disclosure of all matter relevant to

the satisfaction of the judgment, by serving upon any person a subpoena, which . . . shall state

that false swearing or failure to comply with the subpoena is punishable as a contempt of court”

(see also Gryphon Domestic VI, LLC v GBR Info. Servs., Inc., 29 AD3d 392, 393 [1st Dept

2006]). Under CPLR 2308(b)(1), the issuer of a subpoena “may move in the supreme court to

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compel compliance.” The Court must determine whether “the subpoena was authorized,” and, if

so, “it shall order compliance . . . .” (id.).

CPLR 5224(a)(3) notes that information subpoenas should be

accompanied by a copy and original of written questions and a prepaid, addressed return envelope. Service . . . may be made by registered or certified mail, return receipt requested. Answers shall be made in writing under oath by the person upon whom served, if an individual . . . . Each question shall be answered separately and fully and each answer shall refer to the question to which it responds. Answers shall be returned together with the original of the questions within seven days after receipt.

Plaintiffs also move to compel a deposition under Article 31 of the CPLR. CPLR

3101(a) delimits the scope of disclosure to encompass “all matter material and necessary in the

prosecution or defense of an action.” Under CPLR 3124, “[i]f a person fails to respond to or

comply with any request, notice, interrogatory, demand, question or order under this article, . . .

the parting seeking disclosure may move to compel compliance or a response.” CPLR

5224(a)(1) provides for service of “a subpoena requiring attendance for the taking of a deposition

upon oral or written questions at a time and place named therein.” Ten days’ notice is required

before the deposition (CPLR 5224[c]).

The information subpoena indicates it was accompanied by a “prepaid addressed return

envelope” and “two copies of” the subpoena (NYSCEF 221). Plaintiffs include a printout of the

certified mail tracking number destined for zip code 10005, which matches defense counsel’s

office address (NYSCEF 223; 221). They also include an affidavit of service from July 2023,

attesting to the certified mailing of the information subpoena to defendant’s last two known

addresses and counsel’s address (NYSCEF 221). A second service by mailing was made

thereafter in August 2023 and left with an individual in the 10028 zip code (NYSCEF 225; 226).

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Similarly, they emailed the subpoena to defense counsel on two occasions (NYSCEF 222; 224).

Accordingly, compliance with the requirements of CPLR 2308 has been shown and the motion

to compel is granted.

However, the requested deposition cannot be compelled on the current record. Plaintiffs

sought the deposition under Article 31, which applies to depositions during the course of the

litigation itself. A deposition in connection with post-judgment proceedings should be sought by

subpoena under Article 52. Accordingly, the motion to compel as to the Notice of Deposition is

denied without prejudice to a subsequent motion if Plaintiffs subpoena Defendant for deposition

and she fails to comply. Given her prior failures to comply with proper post-judgment discovery

requests, the Court strongly urges Defendant to sit for deposition without the need for a motion.

2. Motion for Contempt

Under CPLR 5251, “[r]efusal or willful neglect of any person to obey a subpoena . . .

issued . . . pursuant to this title . . . shall . . . be punishable as a contempt of court.” A party

subject to an information subpoena has seven days after receipt to respond (CPLR 5224[a][3]).

As noted above, the requirements for the post-judgment information subpoena, but not the

deposition, have been met. The subpoena was first served in July 2023, and this motion was

filed on December 12, 2023 (NYSCEF 219).

Defendant, who attended the hearing with counsel on February 9, 2024, did not file

opposition papers to the instant motion, and did not respond to the subpoena before February 5,

2024. During oral argument, Defendant and her counsel asserted no viable defenses to contempt.

Plaintiffs have met their burden of proving compliance with the requirements of the information

subpoena, and there is no evidence of any meritorious defense for Defendant’s failure to properly

respond. Therefore, the contempt motion is granted.

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Accordingly, it is

ORDERED that Plaintiffs’ motion to compel disclosure is granted in part insofar as it

pertains to the information subpoena, and denied as to the notice of deposition without prejudice

to a subsequent motion to compel a deposition if Plaintiffs properly serve a post-judgment

deposition subpoena; it is further

ORDERED that Plaintiffs’ motion for contempt is granted; it is further

ORDERED that, as stated at the February 9, 2024 hearing, the Defendant was required

to provide complete responses to the information subpoena within thirty (30) days of the

February 9 Hearing; it is further

ORDERED that any objections by Defendant to the requests for information contained

in the subpoena, except for attorney-client privilege, are waived; and it is further

ORDERED that Plaintiffs shall recover the costs and fees reasonably incurred in

connection with the instant motion, including reasonable attorneys’ fees, upon the submission of

an application therefor, including supporting documentation, within fourteen (14) days of the

entry of this Order.

This constitutes the Decision and Order of the Court.

3/13/2024 DATE JOEL M. COHEN, J.S.C. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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