All Is. Truck Leasing Corp. v Perkins (2013 NY Slip Op 50163(U))

All Is. Truck Leasing Corp. v Perkins

2013 NY Slip Op 50163(U) [38 Misc 3d 1220(A)]

Decided on February 6, 2013

District Court Of Nassau County, First District

Ciaffa, J.

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This opinion is uncorrected and will not be published in the printed Official Reports.

The following papers have been considered by the Court

on this motion: submitted February 4, 2013

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Papers Numbered

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Notice of Motion, Affirmation & Exhibits Annexed...........................1 - 2

Plaintiff moves for an order holding defendant in civil contempt for failing to respond to a post-judgment information subpoena (CPLR 5251). At first blush, the application makes out a facially sufficient case for granting such relief. Plaintiff obtained a money judgment against defendant in February 2005, its attorney served an information subpoena upon him in April 2012, defendant received the subpoena, but he failed to honor it. The motion was duly served upon defendant by certified mail, it contains all required warnings, and it was finally submitted after defendant was given multiple chances to appear and be heard. Dozens of similar applications involving other parties have routinely resulted in the issuance of orders holding the defendant in civil contempt.

Upon closer examination, however, this application involves a complicating factor: defendant resides in New York County, not Nassau County. Although the underlying judgment in this matter was entered in this Court, "[c]ontempt proceedings may be brought only in the courts listed in CPLR 5221(a)." See Prof. David D. Siegel's Practice Commentaries to McKinney's CPLR, at C5251:1. Enforcement of a judgment of the Nassau County District Court, through contempt or other means, may be pursued in this Court only if the defendant "resides or is regularly employed or has a place for the regular transaction of business in person within the County..." CPLR 5221(a)(2). This restriction applies equally to motions as well as special proceedings. See CPLR 5221(b); see also [*2]Prof. David D. Siegel's Practice Commentaries, supra, at C5221:1.

Absent evidence that the defendant presently resides in Nassau County or is regularly employed there, CPLR 5221(a)(4) authorizes commencement of a special proceeding "either in the supreme court or a county court in a county in which the respondent resides or is regularly employed or has a place for the regular transaction of business in person..." Since the District Court is a court of limited jurisdiction, it lacks the power to hear and adjudicate the instant contempt motion in the absence of such evidence. Cf. Gary Morgan Chevrolet & Oldsmobile, Inc. v Main, 146 Misc 2d 472 (County Ct Schoharie Co., 1990). Furthermore, the filing of the motion in this Court cannot be treated as a waivable "venue" error. Cf. Cornell Federal Credit Union v. Thorpe, 199 AD2d 936 (3d Dept 1993).

Accordingly, plaintiff's motion is DENIED without prejudice. If plaintiff has a factual basis for alleging that defendant is regularly employed in Nassau County, or has a place for regular transaction of business in the county, it may renew its motion in the District Court. Otherwise, it may pursue such relief from a proper court as allowed by CPLR 5221(a)(4).