The application by petitioner for an order pursuant to C.P.L.R. § 5251 and Judiciary Law § 756 for an order punishing respondent The Law Firm of Jeffrey Lessoff ("Lessoff") by fine and/or imprisonment for contempt based on its wilful disregard of this court's order, dated March 31, 2011, to promptly answer the information subpoena and to immediately provide funds in its escrow account being retained at respondent Ferreira's behest for petitioner and further to provide petitioner with $82,361, is granted. The fine to be imposed is $250 and petitioner shall be awarded the costs of this application.

Petitioner is a limited liability company that provides funding for legal actions, including an action by respondent Baltazar Ferreira, who was represented by respondent Lessoff. This court issued a judgment against respondents for joint and several liability in the amount of $263,715.51 on July 6, 2010. Judgment was entered on July 21, 2010. To date, no part of that judgment has been paid. No stay on the enforcement of the judgment is in effect. There is no basis for respondent Lessoff to avoid payment of this judgment.

On August 13, 2010, petitioner sent an information subpoena with restraining order and notice to judgment debtor or obligor. Respondent Lessoff's office signed for the documents on August 16, 2010. Respondent Lessoff failed to answer the information subpoena with restraining order.

Petitioner moved for an order compelling respondent Lessoff to answer the information subpoena with restraining order and for an order compelling respondent Lessoff to immediately pay the funds it has in escrow on behalf of petitioner on October 29, 2010. This court issued a judgment, dated March 31, 2011, in petitioner's favor and against respondent 1) to promptly answer the information subpoena; 2) to immediately provide petitioner with the funds held in respondent Lessoff's escrow account, at respondent Ferreira's direction, for petitioner; and 3) to [*2]direct payment to petitioner in the amount of $82,361, without interest, costs and disbursements.

Petitioner asserts that respondent Lessoff has not complied with this court's order dated March 31, 2011. As of the date petitioner's application, respondent Lessoff has not provided any answers in accordance with the information subpoena with restraining order, duly served upon him. Petitioner further asserts that it has not received any payments in connection with the previous orders and judgments of this Court. Furthermore, no bond has been filed to suspend respondent Lessoff's obligation to pay the judgments.

Respondent Lessoff argues that petitioner's application is moot because he has now completed the information subpoena. Respondent apologizes for the delay in answering the information subpoena. He asserts that his delay was caused by his bout with the Swine Flu and his current diagnosis of World Trade Center cough. Respondent questions the validity of the judgment against him even though the arbitrator in the underlying action held him jointly and severally liable. He further asserts that he never knowingly violated any orders and was simply ill.

In reply, petitioner contends that respondent Lessoff has not complied with the information subpoena. Respondent was served with the information subpoena on August 16, 2010. Petitioner did not receive respondent's answers to the information subpoena until August 5, 2011. Petitioner argues that respondent's "cursory non-responsive answers submitted almost one year after the Information Subpoena was served upon him — are grounds for Punishment for Contempt." Moreover, petitioner argues that nothing is in fact moot. Respondent has yet to remit payment in any amount to petitioner as ordered by this court on March 31, 2011.

C.P.L.R. § 5251 provides that the "refusal or willful neglect of any person to obey a subpoena or restraining notice issued, or order granted..." is punishable as a contempt of court.

In order to prevail on a motion to punish a party for contempt, it must first be determined that there was a clear and lawful order from the court that has been disobeyed. See, McCain v. Dinkins, 84 NY2d 216 (1994); Matter of McCormick v. Axelrod, 59 NY2d 574 (1983).

Judiciary Law § 753(A) provides that a court "has the power to punish, by fine or imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced..." In a civil contempt motion, "...the movant has the burden of proving that the proposed contemnor's conduct was calculated to, and actually did, defeat, impair, impede and prejudice the rights and remedies of the plaintiff judgment creditor." Metropolitan Life Insurance Co. v. Young, 157 Misc 2d 452, 455 (1993); see also, Judiciary Law § 753(A); Oppenheimer v. Oscar Shoes, Inc., 111 AD2d 28 (1st Dept. 1985).

Although respondent Lessoff asserts that he never knowingly violated any orders, the mere act of disobedience is enough to sustain a finding of civil contempt, provided that the disobedience defeats, impedes, or impairs the rights of a party. See, Torah v. Kesher Intern. Trading Corp., 246 AD2d 538 (2nd Dept. 1998); Cannizzaro v. Cannizzaro, 186 AD2d 776 [*3](2nd Dept. 1992); Yalkowsky v. Yalkowsky, 93 AD2d 834 (2nd Dept. 1983).

In the case at bar, there was a judgment entered in this court on July 21, 2010 against respondents in the amount of $263,715.51. On March 31, 2011, this court issued an order against respondent Lessoff to immediately pay the funds held in escrow on behalf of petitioner and to promptly respond to the information subpoena with restraining order. To date, no payments have been made to petitioner. Due to respondent's inaction, petitioner has not been able to collect any of the funds it is owed. Therefore, this court finds respondent Lessoff in civil contempt. Pursuant to Judiciary Law § 773, this court imposes a fine against respondent Lessoff in the amount of $250 in addition to petitioner's costs and expenses in making this application.

Accordingly, it is hereby,

ADJUDGED, that the petition to punish respondent for contempt is granted, with costs and disbursements to petitioner.

Dated: November 2, 2011

ENTER:

________________________

J.S.C.