This action arises from a property dispute between neighboring property owners. On June 21, 2023, this court issued an order under Real Property Law Actions and Proceedings Law (RPAPL) § 881, granting petitioner, 644 East 14th Street Owner, LLC, a license to access respondent 642 East 14th St's neighboring property. The license was subject to various conditions, including adherence to a monitoring plan meant to safeguard both properties. (See NYSCEF No. 39.) Since issuance of the license, damage to respondent's building has led to a full [*2]vacate order being issued by the New York City Department of Buildings.^[FN1] (NYSCEF No. 212 at 3.)

Petitioner moves to strike respondent's answer and counterclaims, and for sanctions under 22 NYCRR 130-1.1.^[FN2] (NYSCEF No. 226 at 1; NYSCEF No. 236 at 9.)

This court directed respondent to file its answer by March 27, 2023. (See NYSCEF No. 22; NYSCEF No. 236 at 8.) Respondent filed an answer, without leave of court, on June 28, 2024—459 days late. (NYSCEF No. 208.) And petitioner timely served a notice of rejection of the untimely answer on July 12, 2024.^[FN3] (NYSCEF No. 209.) Respondent has provided no excuse for its delay. Absent a valid excuse, no basis exists for this court to accept respondent's (very) late answer. (See Thermo Spas v Red Ball Spas & Baths, 199 AD2d 605, 606 [3d Dept 1993] ["While a court can in its discretion accept late papers, CPLR 2214 and 2004 mandate that the delinquent party offer a valid excuse for the delay."].) Petitioner's motion to strike the answer/counterclaims is granted. The court declines, however, to award sanctions, as petitioner requests.

In May 2024, respondent served a subpoena duces tecum on non-party Adam Wall, P.E., petitioner's engineer. (NYSCEF No. 203 at 2.) The subpoena sought inspection reports and architectural plans, and directed that those documents be brought to respondent's counsel's office for inspection and copying. (See NYSCEF No. 203 at 2, 4.) Petitioner requested that respondent withdraw the subpoena. (See NYSCEF No. 204 [correspondence].) Respondent did not do so.

On motion sequence 007, petitioner moves (1) to quash the subpoena, (2) for a protective order pursuant to CPLR 3103 (a), and (3) for sanctions against respondent under 22 NYCRR § 130-1.1 (motion sequence 007). (NYSCEF No. 201 at 1.) On motion sequence 006, respondent moves to advance the return date on motion sequence 007, arguing that the motion to quash is a delay tactic. (NYSCEF No. 248 at 3.) This court agrees with petitioner that the subpoena must be quashed.

Petitioner argues first that use of subpoenas as a disclosure device is prohibited in special proceedings without leave of court under CPLR 408—which respondent neither sought nor obtained. (NYSCEF No. 204 at 1; NYSCEF No. 207 at 1.) This court agrees. (See e.g. Harbor Tech LLC v Correa, 2021 NY Slip Op 50995[U], at *3 [Civ Ct, Kings County 2021] [in a special proceeding, denying motion to so-order a discovery subpoena when the subpoenaing party had not established that leave of court under CPLR 408 was warranted].)

CPLR 408 governs the use of disclosure in special proceedings like this one. CPLR 408 provides that "[l]eave of court shall be required for disclosure except for a notice" to admit under [*3]CPLR 3123. And leave of court, where required, should be granted only on "a showing of ample need or unusual circumstances." (Matter of People v Northern Leasing Sys., Inc., 193 AD3d 67, 74 [1st Dept 2021] [internal quotation marks omitted].) Respondent argues that leave of court was not required here. A subpoena, respondent says, is not a CPLR 3102 (a) disclosure device; and, as a result, the discovery obtained through use of the subpoena categorically does not count as "disclosure" within the meaning of CPLR 408. (NYSCEF No. 205 at 1.) This argument is groundless.

Disclosure is governed by CPLR article 31. CPLR 3102 (a) identifies various disclosure devices, including "depositions upon oral questions" and "discovery and inspection of documents or property." Other provisions in CPLR article 31 provide that depositions of nonparty witnesses, and discovery and inspection of documents in the control of nonparties, may (and must) be obtained through service of subpoenas. (See CPLR 3106 [b], CPLR 3120 [1] [i].) Information produced in response to subpoenas may thus constitute disclosure within the meaning of CPLR article 31 (and CPLR 408).^[FN4] Indeed, notices of deposition and notices for discovery and inspection are not mentioned in CPLR 3102 (a), any more than are subpoenas. Respondent's theory, therefore, would appear to entail the implausible conclusion that CPLR 408 does not require leave of court for depositions and document production at all. That conclusion cannot be reconciled with First Department precedent. (See e.g. Matter of Burden, 5 AD3d 1, 2 [1st Dept 2004] [confirming three-month disciplinary suspension of an attorney who improperly obtained financial and medical records of his client's adversary through using subpoenas without leave of court under CPLR 408, and then lied about it to the court]; accord Matter of Winiarsky, 104 AD3d 1, 3-4, 7-8 [1st Dept 2012] [holding that an attorney's improper maneuvering to obtain nonparty deposition testimony without leave of court under CPLR 408 warranted the disciplinary sanction of public censure].)^[FN5]

Moreover, even if leave of court were not required, petitioner is correct that the subpoena still must be quashed. Petitioner's counsel represents—and respondent has not disputed—that respondent served the subpoena at issue only on Adam Wall, not also on counsel. (See NYSCEF No. 202 at ¶ 3 [affirmation of counsel]; NYSCEF No. 204 at 1 n 1.) But CPLR 3120 (3) requires that the party issuing a subpoena duces tecum "shall at the same time serve a copy of the subpoena upon all other parties." Failure to comply with this service requirement warrants quashing the subpoena. (See Needleman v Tornheim, 88 AD3d 773, 773-774 [2d Dept 2011].)

Petitioner's motion to quash and for a protective order is granted. Petitioner's request for sanctions is denied. Respondent's motion to advance the return date of the motion to quash is denied as academic.

A. Respondent's First Contempt Motion (Mot. Seq. 003)

On motion sequence 003, respondent moves for an order holding petitioner in criminal and civil contempt of this court's June 2023 order under Judiciary Law §§ 750 and 753, respectively. (NYSCEF No. 153 at 1 [order to show cause].) Respondent also requests that this court amend the June 2023 order to require that petitioner reimburse respondent for "professional fees" and "expenses incurred relating to the licensed access granted" in that order. (Id. at 2.)

The branch of respondent's motion to hold petitioner in criminal and civil contempt must be denied. A motion to hold a person in contempt must contain a notice stating: "WARNING: YOUR FAILURE TO APPEAR IN COURT MAY RESULT IN YOUR IMMEDIATE ARREST AND IMPRISONMENT FOR CONTEMPT OF COURT." (Judiciary Law § 756.) Absent this warning, the court lacks jurisdiction to grant the motion. (Body Glove IP Holdings LP v On Five Corp., 217 AD3d 561 [1st Dept 2023].) Respondent's order to show cause on motion sequence 003 does not contain the necessary warning.

Respondent's request to amend the June 21, 2023, order is also denied. Respondent seeks "professional fees it has incurred following the Order due to Petitioner's admitted violation of the Order, being hauled into Court on entirely improper proceedings (e.g., Jack Pile Work), having to address and correct Petitioner's repeated falsehoods and misrepresentations to this Court . . . [and] having to respond to numerous violations issued to the Respondent Building, and the Vacate Order." (NYSCEF No. 137 at 21-22.) But respondent has not identified the fees it requests. Nor has respondent provided invoices or documentation supporting this request. (See Matter of 18 W. 55th St. LLC v Pleiades House LLC, 230 AD3d 990, 991 [1st Dept 2024] [affirming denial of request for additional attorney and professional fees, based on the lack of an evidentiary basis for the request].)

Respondent's motion is denied. The court does not reach the parties' remaining arguments.

B. Respondent's Second Contempt Motion and Motion for Preliminary Injunction (Mot. Seq. 005)

On motion sequence 005, respondent moves again to hold respondent in civil and criminal contempt. Respondent seeks a preliminary injunction enjoining petitioner from engaging in any work on the premises. (NYSCEF No. 250 at 1-2.) Respondent claims that petitioner has not monitored the property as required under the June 2023 order and that petitioner has unlawfully trespassed on respondent's property. (Id. at 6-8.) And respondent requests a hearing for reimbursement of attorney and professional fees. (NYSCEF No. 250 at 2.)

i. Criminal Contempt

Respondent claims that petitioner should be punished for criminal contempt under Judiciary Law § 750. (NYSCEF No. 212 at 11.) No basis exists to impose criminal-contempt sanctions on this motion.

A criminal contempt application must be personally served. (See Judiciary Law § 751.) Indeed, "a criminal contempt mandate can only be rendered in a special proceeding, which requires personal service with equal dignity to that required of summons." (Matter of Grand Jury Subpoena Duces Tecum Served upon Morano's of Fifth, Ave., Inc. 144 AD2d 252, 255-256 [1st Dept 1988].) Absent personal service, the court lacks jurisdiction to hold the alleged contemnor in criminal contempt. (See id. at 256.) Petitioner contends that respondent did not personally serve it with the contempt motion. (NYSCEF No. 267 at ¶ 3.) Respondent does not dispute this contention. The branch of the motion to hold petitioner in criminal contempt (and to impose contempt sanctions) is therefore denied.

ii. Civil Contempt

Respondent moves to hold petitioner in civil contempt under Judiciary Law § 753. Respondent claims petitioner disobeyed the court's June 2023 order by obstructing monitoring devices and allegedly trespassing on respondent's building. Petitioner responds that it continuously monitors respondent's building and sends reports to both the DOB and the [*5]Respondent. (NYSCEF No. 271 at 6-7.) Petitioner also contends that, with the DOB's permission, it ceased monitoring points that became obstructed by the structure as it was built. (Id. at 8; see also NYSCEF No. 260 [email between Adam Wall and DOB representative].) Petitioner also claims that respondent's building, at the time of the motion, had not moved in months. (NYSCEF No. 271 at 9.)

In granting a motion for civil contempt "it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect," and that a "reasonable certainty" exists that the order was disobeyed." (McCormick v Axelrod, 59 NY2d 574, 583 [1983].) Additionally, "the party to be held in contempt must have had knowledge of the court's order," and movant must demonstrate "prejudice to the right of a party to the litigation." (Id.)

Here, respondent has failed to show that this court's order was violated. The June 2023 order requires petitioner to act "in accordance with applicable laws, rules, regulations, codes and directives of governmental entities having jurisdiction over the Project." (NYSCEF No. 40 at 1.) The record reflects that DOB is regularly updated and consulted on the project; and that petitioner acts in accordance with DOB's instructions. The court therefore concludes that petitioner is complying with this court's order, not disobeying it.

With respect to the alleged trespass, respondent claims that petitioner trespassed "to brace its form work for the construction of the adjacent West wall of its new building." (NYSCEF No. 215 at 6.) Respondent does not identify when these incidents occurred. Respondent's sole evidence is engineer Stuart Gold's affidavit in which he mentions petitioner's "illegal encroachment" when forming and shaping concrete. (NYSCEF No. 215 at 6.) But Gold does not state the basis for his knowledge. (See id.) Respondent has not offered clear and convincing evidence demonstrating that petitioner violated this court's order, as is required. (See El-Dehdan v El-Dehdan, 26 NY3d 19, 29 [2015] [collecting cases].) The branch of respondent's motion for civil contempt (and contempt sanctions) is denied.

iii. Preliminary Injunction

Respondent seeks a preliminary injunction "enjoining Petitioner from engaging in any work . . . concerning the project being performed by Petitioner . . . that is not in compliance with the New York City Building Code, and/or not in compliance with the June 2023 Order." (NYSCEF No. 211 at 1.) Respondent claims it has established the likelihood of success on the merits by establishing (1) that petitioner violated the Code and monitoring plan and (2) that petitioner is illegally encroaching on respondent's building by using the West wall for concrete formwork. (NYSCEF No. 212 at 15-16.) This court disagrees.

As shown above, respondent has not shown that petitioner has violated the Code or monitoring plan. Additionally, the parties present conflicting affidavits on this issue (Compare NYSCEF No. 215 at 6 [Gold's affidavit]; NYSCEF No. 216 [Bilow affidavit] with NYSCEF No. 254 [Wall affidavit]; NYSCEF No. 261 [Sikarev affidavit].) Given this factual dispute, granting a preliminary injunction would be improper. (See Lehey v Goldburt, 90 AD3d 410, 411 [1st Dept 2011].) Respondent also has not clearly shown by clear and convincing evidence that the petitioner is illegally encroaching on respondent's building. The branch of the motion seeking a preliminary injunction is denied.

Accordingly, it is

ORDERED that petitioner's motion to strike respondent's untimely answer (mot seq 004) is granted; and it is further

ORDERED that the branches of petitioner's motion seeking to quash respondent's subpoena of non-party Adam Wall and requesting a protective order (mot seq 007) are granted; and it is further

ORDERED that the branch of petitioner's motion seeking sanctions against respondent (mot seq 007) is denied; and it is further

ORDERED that respondent's motion to advance the return date of the motion to quash (mot seq 006) is denied as academic; and it is further

ORDERED that respondent's (first) motion for criminal and civil contempt and associated [*6]sanctions (mot seq 003) is denied; and it is further

ORDERED that the branch of respondent's motion that again seeks criminal and civil contempt and associated sanctions (mot seq 005) is denied; and it is further

ORDERED that the branch of respondent's motion seeking a preliminary injunction (mot seq 005) is denied.