Civil Court of the City of New York, Kings County, November 20, 2019

Kazlow & Kazlow, New York City, for plaintiff.

Deverson Baptiste, doing business as Dev B Services, defendant pro se.

Kemuel F. Baptiste, doing business as Kemmy's Roofing, defendant pro se.

Plaintiff moves this honorable court by order to show cause for an order to punish for contempt of court upon defendant judgment debtors and other enumerated relief for willful refusal to comply with a judicial subpoena for witness testimony and production of documents. For the reasons set forth below, plaintiff judgment creditor's motion to punish for contempt of court is granted.

On February 6, 2013, plaintiff commenced this action against defendants for the following causes of action:

1. Failure to provide goods ordered in the amount of $2,600;

2. Other in the amount of $4,160;

3. Loss of use of property in the amount of $1,000;

4. Other in the amount of $7,000, with interest from February 28, 2007.

Defendant D. Baptiste, doing business as Dev B Services, on May 1, 2019, and defendant K. Baptiste, doing business as Kemmy's Roofing, on April 27, 2019, were both served by substitute service with a subpoena titled "Judicial Subpoena {**66 Misc 3d at 530}(Duces Tecum)"^[FN1] dated March 29, 2019, commanding personal appearance for deposition testimony as well as for the production of certain enumerated documents, books, papers and records, clearly and unequivocally stating that failure to appear and comply may lead to imprisonment: "THIS SUBPOENA REQUIRES YOUR PERSONAL APPEARANCE AT THE TIME AND PLACE SPECIFIED. FAILURE TO APPEAR MAY SUBJECT YOU TO FINE AND IMPRISONMENT FOR CONTEMPT OF COURT."

Notation of default was signed before a notary under penalty of perjury indicating both defendants failed to appear at the offices of plaintiff's counsel on the subpoena's appointed date of June 28, 2019, and times of 2:00 p.m. and 2:30 p.m. Consequently, plaintiff filed an order to show cause to punish defendants for contempt on July 9, 2019, but withdrew same at the July 19, 2019 court appearance due to failure to serve motion papers upon both defendants. Plaintiff refiled the order to show cause to punish for contempt on July 31, 2019, which is the instant matter before this court. Pursuant to directive of the Appellate Division, Second Department, a contempt hearing was ordered for November 19, 2019.^[FN2] Notwithstanding defendants' failure to appear, plaintiff argued its motion for punishment order at the contempt hearing.

"Refusal or willful neglect of any person to obey a subpoena . . . shall each be punishable as a contempt of court" (CPLR 5251). Contempt punishment is a rather drastic punitive enforcement tool statutorily bestowed upon courts in both criminal and civil jurisdictions from the very creation of the judicial{**66 Misc 3d at 531} system from the King's Bench.^[FN3] Consistent with the court's inherent powers to punish parties for [*2]failure to adhere to and comply with the court's mandates and to preserve the court's authority over the conduct of private parties as in civil matters, or society at large, to wit, the People, as in criminal matters, there must be some teeth, some stick to the court's enforcement powers. Contempt punishment is that enforcement tool statutorily provided to the court with the teeth and the stick to assert its power to demand that its mandates be carried out by the contemnor. Contempt punishment, however, is not so readily granted without the utmost of fastidious due diligence and due deliberation by the courts, particularly in the context of civil matters. Contempt is a crime in and of itself and therefore is punished within the penal system just as any{**66 Misc 3d at 532} other crime, which carries with it the imposition of a sentence of incarceration to the contemnor. It is for that reason that courts are reluctant to impose contempt punishment sentencing, whether by fine or more so drastic by a period of incarceration, particularly in civil matters. Nevertheless, such sentencing for contempt punishment carries the weight and gravitas that is sometimes required upon recalcitrant contemnors.

Although governed by distinct statutory constructs, contempt punishment for disobeying a subpoena in both the civil and criminal jurisdictions are the same rules, protocols, processes and remedies.^[FN4] Nevertheless, courts exercise an even higher level of due diligence and due deliberation where the underlying civil matter is for enforcement of money judgments. It is quite evident why the more drastic sentence of incarceration is so much more problematic to the courts in such an instance.^[FN5] Nevertheless, contemnors that intentionally flout civil court {**66 Misc 3d at 533}judicial mandates, as is a subpoena,^[FN6] must be punished by the court in its power to regulate conduct within the judicial system. Otherwise, we would foster an anarchic society where courts would be devoid of authority to regulate behavior and conduct of persons. The judiciary branch of government is tasked with the enforcement of the legislative branch's duly circumscribed codified laws of behavior and conduct of its people. Therefore, after a court provides some level of latitude to the contemnor, there comes a watershed moment when the civil court, no matter how reluctant it may find itself, must indeed [*3]exercise its punishment enforcement powers of contempt with all its full encompassing ramifications and consequences thereto. Indeed, there are accelerating harsh consequences to ensure that contemnors in civil actions truly comprehend the gravitas that is generally inherent in criminal matters. Not so, in civil jurisdictions. Contemnors appear to trivialize civil matters as of no moment and its mandates as a subpoena may be unheeded and flouted without consequence thereto because it is not criminal. However, failure to comply with the judicial mandate of a subpoena in civil matters clearly states that not merely fines but also sentence of imprisonment is a consequence pursuant to CPLR 2308 (a):

"Failure to comply with a subpoena issued by a judge, clerk or officer of the court shall be punishable as a contempt of court. If the witness is a party the court may also strike his or her pleadings. A subpoenaed person shall also be liable to the person on whose behalf the subpoena was issued for a penalty not exceeding one hundred fifty dollars and damages sustained by reason of the failure to comply. A court may issue a warrant directing a{**66 Misc 3d at 534} sheriff to bring the witness into court. If a person so subpoenaed attends or is brought into court, but refuses without reasonable cause to be examined, or to answer a legal and pertinent question, or to produce a book, paper or other thing which he or she was directed to produce by the subpoena, or to subscribe his or her deposition after it has been correctly reduced to writing, the court may forthwith issue a warrant directed to the sheriff of the county where the person is, committing him or her to jail, there to remain until he or she submits to do the act which he or she was so required to do or is discharged according to law. Such a warrant of commitment shall specify particularly the cause of the commitment and, if the witness is committed for refusing to answer a question, the question shall be inserted in the warrant."

The judicial subpoena must explicitly, in writing, state the specific commands being mandated, and only disobedience of that explicit written command shall be subject to the very drastic punishment for contempt of court (see Matter of Mullen v Halleran, 177 Misc 734 [1941]). Furthermore, Judiciary Law § 753 (A) (5) likewise bestows upon a court of record the power to punish,

"by fine and 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 . . . may be defeated, impaired, impeded, or prejudiced, in [the case of] . . . [a] person subpoenaed as a witness, for refusing or neglecting to obey the subpoena, or to attend, or to be sworn, or to answer as a witness."

It is well established in the Second Department that the "mere act of disobedience is sufficient to sustain a finding of civil contempt where . . . the record reveals that such disobedience was calculated to or actually did defeat, impair, impede, or prejudice the plaintiff's rights" (Kaywood v Cigpak, Inc., 258 AD2d 623, 623 [2d Dept 1999], citing Yeshiva Tifferes Torah v Kesher Intl. Trading Corp., 246 AD2d 538 [2d Dept 1998]; see also Oppenheimer v Oscar Shoes, 111 AD2d 28 [1st Dept 1985]; McNulty v McNulty, 81 AD2d 581 [2d Dept 1981]). A hearing may be ordered by the court to determine whether the "rights or remedies of a party to a civil action may be defeated, impaired, impeded or prejudiced by any disobedience to a lawful mandate of the court" (Great Neck Pennysaver v Central {**66 Misc 3d at 535}Nassau Publs., 65 AD2d 616, 616 [2d Dept 1978]). Therefore, a court should not decide a motion for contempt punishment without a hearing. Additionally, disobedience of a subpoena is further provided for pursuant to CPLR 5251: "[r]efusal or willful neglect of any person to obey a subpoena . . . shall each be punishable as a contempt of court."

CPLR article 52 more specifically addresses the use of postjudgment judicial subpoenas for the enforcement of money judgments. Wherefore: "Although the contempt punishment is not available for the general enforcement of money judgments . . . it does serve as the sanction to implement several of the devices that Article 52 of the CPLR offers to aid in the money judgment enforcement process."^[FN7] Contempt punishment is considered a "back-up device" in the enforcement of money judgments pursuant to CPLR 5251.^[FN8] Where the service of a postjudgment subpoena upon a judgment debtor pursuant to CPLR 5224 is refused or willfully neglected then the procedural granting of an order for contempt punishment is rather effectuated pursuant to Judiciary Law § 750.^[FN9]

The manner of service of the subpoena is a vital consideration in the court's decision-making in the meting out of the appropriate contempt punishment. Subpoenas are

"served in the same manner as a summons, except that where service of such a subpoena is made pursuant to subdivision two or four of section three hundred eight of this chapter, the filing of proof of service shall not be required and service shall be deemed complete upon the later of the delivering or mailing of the subpoena" (CPLR 2303 [a]; see CPLR 2308 [2]; see also CPLR 2308 [4]).

Notwithstanding this practice being deemed sufficient as within the court's statutory authority, nevertheless courts are reluctant to order a finding of contempt punishment when service of a subpoena was by substituted service rather than personal delivery (see Matter of Temporary State Commn. on Living Costs & Economy v Bergman, 80 Misc 2d 448 [Sup Ct, NY County 1975]). Issues arise when the subpoenaed contemnor opposes or moves to quash the subpoena alleging non-{**66 Misc 3d at 536}receipt of the subpoena due to factors that may undermine substituted service (see id. [court quashed subpoenas served by substitute service in absence of a showing that parties served were residing in state when service was attempted]).

In the instant matter brought by order to show cause for contempt punishment, there is a blatant unabashed pattern of defiance by both contemnors to sustain an imposition of contempt punishment. Of particular significance here, both defendants are operating businesses as roofers and their business practices have aggrieved a consumer, to wit, plaintiff. Defendants' authority to operate their business derives from the law and their business practices in their transactions with public consumers are statutorily circumscribed and mandated. Therefore, their willful refusals to adhere to the mandates of the enforcement branch is even more untenable. It belies public policy and consumer protection to allow businesses to merely flout all judicial protocols and procedures to the detriment of public consumers as the defendants herein without consequences. Both defendants have flouted all judicial protocols and procedures from the very beginning of the case, in failure to respond to the jurisdiction of the court, evidencing a trivialization of the inherent power of the civil court's authority over their persons as operators of business marketed to the public. Defendants failed to interpose an answer pursuant to a summons and complaint duly served. Defendants never appeared to challenge a default judgment filed and duly served. Defendants willfully refused to appear as well as to respond in any way, shape or form to the duly served subpoena with its boldfaced warning as to the penal consequences of failure to comply. Defendants' continued willful disregard of the orders and authority of the court is ever so evident in their utter disregard of this instant matter to punish them, where it clearly states, again, in bold large font the consequence of noncompliance with the duly served subpoena can be imprisonment. Still, threat of incarceration was of no moment to these recalcitrant defendants.

Moreover, defendant D. Baptiste was personally served with the instant order to show cause to punish for contempt, and thus was personally on notice of the subpoena at the time of service and had ample opportunity to cure his noncompliance with its commands. Defendant K. Baptiste was duly served by substitute service. Both defendants have failed to comply. The fact that neither defendant appeared on August 14, 2019, and{**66 Misc 3d at 537} continue in their noncompliance with the subpoena, clearly evidences as plaintiff convincingly argued at the contempt hearing that defendants' actions were and continue to be "calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of" the plaintiff (Oppenheimer v Oscar Shoes, 111 AD2d 28, 29 [1st Dept 1985], citing Judiciary Law § 753; Powell v Clauss, 93 AD2d 883 [2d Dept 1983]). Defendants' obvious disregard of all the court mandates from inception of this civil case up to and including failure to comply with the subpoena, a judicial mandate of the civil court, demonstrates refusal and willful neglect to obey this subpoena and rejection of the inherent power and authority of the civil court (see Great Neck Pennysaver v Central Nassau Publs., 65 AD2d 616 [2d Dept 1978]). Both judgment debtors D. Baptiste and K. Baptiste were duly served with postjudgment subpoenas by plaintiff judgment creditor for both testimony and document production "on all matters relevant to the satisfaction of such judgment" (subpoena at 2). The Appellate Division, Second Department, has long affirmed the holding of civil contempt punishment against judgment debtors for failing to submit to a postjudgment examination and production of documents for the enforcement of money judgments pursuant to CPLR article 52 (see Dubroff v Norych & Tallis, 220 AD2d 480 [2d Dept 1995]; see also Great Neck Pennysaver v Central Nassau Publs., 65 AD2d 616 [2d Dept 1978]). With emphasis: since these contemnor defendants hold themselves out as engaging in business marketed to the public consumer, their willful refusal to comply with the postjudgment subpoena is even more so contemptible.

For the foregoing reasons, under separate cover and incorporated by reference herein, a punishment order imposing a fine and costs in the amount of $160 upon each, defendant Deverson Baptiste and defendant Kemuel Baptiste, with no order for arrest by the sheriff, is granted.

Defendant Deverson Baptiste and defendant Kemuel Baptiste may stop this punishment for contempt of court by appearing in court to vacate this order.

"Anglo-Saxon courts of justice are vested, by the very act of their creation, with the 'power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates,' and to protect the integrity of their proceedings and their officers from disruption and corruption. Historically, English and American courts have possessed this inherent authority to punish parties for contempt as of the moment they were constituted. When the judiciary exercises its inherent contempt power, it vindicates its authority and therefore its existence as an institution of separated government. Ancillary to the exercise of this inherent contempt power is the punishment or modification of behavior for the benefit of either the public generally or private suitors individually. Contrary to some inaccurate statements made by a myriad of American courts ranging from the 'milk stool' [an idiom referring to the criminal American justice system as a three-legged milk stool comprised of three indispensable supporting branches—police, prosecutors and the courts (Street Crime in America [The Police Response], Hearings Before the Select Committee on Crime HR, 93rd Cong, 1st Sess at 149 [1973])] to America's highest, statutes regulating the judiciary's inherent contempt power are limitations on, not conferrals of, such power. While the judiciary's inherent contempt power is part of its definition as a political institution, its authority over penal law crimes of contempt is legislatively conferred. Crimes of contempt are entirely creatures of legislative enactment. They are conceptual cousins to those inherent powers wielded by courts to vindicate their own authority. The inherent judicial contempt power preserves both the court's authority and the rights of parties to a lawsuit. Under penal laws, courts punish contempt crimes just like any other crime, namely, by imposing a sentence for transgressions of the public's right to peace, security and good order" (Lawrence N. Gray, Criminal and Civil Contempt: Some Sense of a Hodgepodge, 72 St. John's L Rev 337, 338-339 [1998]).

"Jailing criminal defendants who cannot pay their fines and court costs—commonly called debtors' prison—keeps them from jobs, hurts their families, makes them dependent on society, and costs the taxpayers money. Most importantly, it is illegal under the United States Constitution. Judges must determine whether a defendant is actually unable, not just unwilling, to pay a fine. A defendant whose liberty is at stake must be given a hearing and may be entitled to legal counsel. For the indigent, the fine must be waived and some alternative punishment arranged, such as community service or training. For those who can pay something but only by struggling, adding multiple fees threatens to drown the defendant in debt: there are extra fees for payment plans, for missed payments, for making payments—yes, there is even a fee for making a payment—pay to pay—warrant issuance fees, warrant service fees—the list goes on and on. And revoking a defendant's driver's license just keeps him from going to work to earn enough to pay the fines and fees" (Hon. Nathan L. Hecht, Address to the 85th Texas Legislature [2017], excerpted in Who Pays? Fines, Fees, Bail, and the Cost of Courts, The Twenty-First Annual Liman Colloquium at I-3, Yale Law School [Apr. 5 & 6, 2018]).

However, it is much more objectionable to society as against such de facto debtors' prison to be imprisoned for an underlying money judgment in the civil jurisdiction as opposed to in the criminal jurisdiction.

"to mean a subpoena issued by a judge or the clerk, or by any other 'officer' of the court. The 'officer of the court' includes the attorney in the case, who issued the subpoena, and subdivision (a) may be regarded as embracing any subpoena returnable to a court or being used in connection with a judicial proceeding."

Additionally, CPLR 2302 (a) provides that a subpoena may be issued "without a court order by . . . an attorney of record for a party to an action."