Zanani v Schvimmer (2012 NY Slip Op 51552(U))

Zanani v Schvimmer

2012 NY Slip Op 51552(U) [36 Misc 3d 144(A)]

Decided on August 16, 2012

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Doron Zanani, Plaintiff-Appellant- Cross-Respondent,

against

Miriam Schvimmer and Israel Schvimmer, Defendants-Respondents- Cross-Appellants.

Plaintiff, as limited by his briefs, appeals from that portion of an order and judgment (one paper) of the Civil Court of the City of New York, New York County (Margaret A. Chan, J.), entered May 11, 2011, which, in granting plaintiff's motion to punish defendants for civil contempt, denied, sub silentio, so much of the motion as sought costs and attorneys' fees pursuant to Judiciary Law § 773. Defendants cross-appeal from that portion of the aforesaid order which denied their cross motion to impose sanctions against plaintiff and to restrain him from enforcing an amended judgment.

Order and judgment (one paper) (Margaret A. Chan, J.), entered May 11, 2011, modified to grant plaintiff's motion for costs and attorneys' fees and remand the matter for a hearing to determine the amount of said costs and attorneys' fees and entry of an amended order and judgment; as modified, order and judgment affirmed, with $10 costs.

We sustain the finding of civil contempt, since the record establishes with reasonable certainty that defendants "refus[ed] or willful[ly] neglect[ed]" to obey the post-judgment subpoena duces tecum, thereby prejudicing plaintiff's rights (CPLR 5251; see McCain v Dinkins, 84 NY2d 216, 226 [1994]; Matter of McCormick v Axelrod, 59 NY2d 574, 583 [1983]). Defendants's submission, including the handwritten stipulation between the parties, failed to establish that they were relieved of the obligation to comply with the subpoena (see CPLR 5224). Critically, the stipulation did not on its face refer to the subject of the underlying fee dispute and made no mention of the subpoena.
Civil Court should have granted plaintiff's motion for costs and attorneys' fees. "Judiciary Law § 773 permits recovery of attorney's fees from the offending party by a party aggrieved by the contemptuous conduct [citations omitted]" (Schwartz v Schwartz, 79 AD3d 1006, 1009 [*2][2010]). We therefore remit the matter to determine the costs and fees incurred by plaintiff as a result of the contemptuous conduct (see 1319 Third Ave. Realty Corp. v Chateaubriant Rest. Dev. Co., LLC, 57 AD3d 340, 341 [2008]; Clinton Corner HDFC v Lavergne, 279 AD2d 339 [2001]).