A judgment was previously entered in the Plaintiff's favor, against the Defendant, in the amount of $962.79, on April 28, 2005, of which $1,328.24, inclusive of accumulated interest thereon, remains unpaid.

On November 20, 2006 the Plaintiff served a Restraining Notice to Garnishee and Information Subpoena upon the Defendant by certified mail, return receipt requested. The Defendant has not responded to the Information Subpoena. The Plaintiff now moves for an order punishing the Defendant for contempt in failing to respond to the Information Subpoena served upon him. The Defendant has not appeared to oppose this motion.

Contempt is a drastic remedy which should not be granted absent a clear right to such relief, Pinto v. Pinto, 120 AD2d 337, 501 NYS2d 835 (1st Dept. 1986); Usina Costa Pinto SA v. Sanco Sav Company Limited, 174 AD2d 487, 571 NYS2d 264 (1st Dept. 1991). In order to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party had knowledge of a clear and unequivocal court order, which he/she violated, thereby prejudicing the rights of another party to the litigation. See, Judiciary Law § 753(A)(3); Dalessio v. Kressler, 6 AD3d 57; 773 NYS2d 434 (2nd Dept. 2004); McCain v. Dinkins, 84 NY2d 216, 616 NYS2d 335 (1994).

An individual properly served with an information subpoena is obligated to return his/her answers within seven (7) days of receipt of the questions. CPLR § 5224(a)(3). The recipient's refusal or willful neglect in so responding shall be punishable as a contempt of court. CPLR § 5251. As indicated above, however, contempt will not be found until it is demonstrated that the recipient had knowledge of this obligation.

In accordance with CPLR § 5224(a)(3), "Service of an information subpoena may be made by registered or certified mail, return receipt requested." Service may also be made, pursuant to CPLR § 2303, "in the same manner as a summons." There are [*2]advantages and disadvantages to each method. The former provides some certainty of receipt by the person served, but is more expense and time consuming. The latter is cheaper and easier to accomplish, but presents pitfalls to a judgment creditor subsequently seeking to obtain an order finding the intended recipient in contempt.

The Plaintiff has not demonstrated that the Information Subpoena herein was ever signed for by the Defendant, or anyone on his behalf, or that it was ever received by the Defendant. In the absence of such proof, the court cannot find that the Defendant's failure to respond was the result of a refusal or willful neglect and may be the result of the Defendant's never having received the Information Subpoena. Accordingly, the Plaintiff's motion to have the Defendant found in contempt is denied. Jack Mailman & Leonard Flug DDS, PC, v. Belvecchio, 195 Misc 2d 275, 757 NYS2d 216 (App. Term 2nd Dept. 2002); Star Brite Painting, Inc. v. Dubie's Hot Spot Inc., 2 Misc 3d 1004(A), 784 NYS2d 924 (Civ. Ct. Queens Co. 2004); Metropolitan Life Insurance Company v. Young, 157 Misc 2d 452, 596 NYS2d 653 (Civ. Ct. NY Co. 1993)

All other matters not decided herein are hereby denied

This constitutes the decision and order of this court.

Dated: Hempstead, New York

March 12, 2007

___________________________

ANDREW M. ENGEL

J.D.C.