[*2]Statement Pursuant to CPLR § 2219

The following papers were read on the application by Defendants Liang Yi Kuang and Yao Zhu Huang for an order pursuant to Judiciary Law §§ 750, 753, 756, and 774, holding non-party witness Mohammed Abuhamda in contempt for failure to comply with subpoenas directing his appearance for deposition:

1. Affirmation in Support of Order to Show Cause dated May 15, 2025;

2. So Ordered Judicial Subpoena dated December 2, 2024;

3. Judicial Subpoena dated February 12, 2025;

4. Corresponding exhibits. (NY St Cts Filing [NYSCEF] Doc Nos. 59-70).

No appearance was made by Mohammed Abuhamda on the return date. No opposition papers were filed. This Decision and Order is rendered on default.

This matter arises from allegations that Plaintiff Julie Brusca sustained personal injuries and property damage due to mold contamination at 50 Benjamin Drive, Staten Island, which is alleged to have originated from 52 Benjamin Drive, a property owned and controlled by the moving Defendants.

At her Examination Before Trial on June 4, 2024, Plaintiff testified that Mohammed Abuhamda, a non-party witness, had informed Defendants of a hazardous condition at the property prior to discovery of the alleged mold. Based on this testimony, both Plaintiff and Defendants sought to depose Mohammed Abuhamda. In Plaintiff's Affirmation in support of Order to Show Cause (Motion #003) indicates on personal knowledge that non-party witness Mohammed Abuhamda was more commonly known to her as "Mike" (NY St Cts Filing [NYSCEF] Doc No. 60 at ¶10).

On or about October 28, 2024, Plaintiff served a Notice to Take Deposition Upon Oral Examination upon Mohammed Abuhamda, returnable November 27, 2024. He failed to confirm his attendance until the morning of the scheduled deposition, and the proceeding was adjourned.

Thereafter, on December 2, 2024, Plaintiff procured a subpoena duly So Ordered by the Court compelling Mohammed Abuhamda to appear for deposition on January 23, 2025. He failed to appear.

On February 12, 2025, Defendants served a Judicial Subpoena upon Mohammed Abuhamda, along with the requisite statutory witness fee, directing him to appear for deposition on March 11, 2025. Mohammed Abuhamda explicitly communicated to counsel that he would not comply and had no intention of appearing.

There is no indication in the record that Mohammed Abuhamda sought to quash, vacate, or otherwise respond to either subpoena.

Judiciary Law § 753[A][1] provides that a witness who refuses to obey a subpoena duly issued by a court may be held in civil contempt. The standard requires the movant to establish:

1. That a lawful and unequivocal court order was in effect;

2. That the alleged contemnor had knowledge of the order; and

3. That the disobedience resulted in prejudice to the movant's rights (see Wells Fargo Bank, N.A. v. Confino, 175 AD3d 533 [2d Dept 2019] quoting Matter of Fruchthandler v Fruchthandler, 161 AD3d 1151 [2d Dept 2018], quoting El-Dehdan v El-Dehdan, 114 AD3d 4 [2d Dept 2013]).

Here, the So Ordered Subpoena dated December 3, 2024 (NY St Cts Filing [NYSCEF] Doc No. 68) constitutes a lawful and unequivocal mandate of this Court. The Judicial Subpoena issued by Defendants and served on February 11, 2025 was likewise valid. (NY St Cts Filing [NYSCEF] Doc No. 69). The record establishes that both were duly served upon Mohammed Abuhamda, and that he knowingly and willfully disobeyed them.

The prejudice to Defendants is not speculative. According to Plaintiff's testimony, Mohammed Abuhamda is the only known individual alleged to have knowledge of communications to Defendants regarding the condition of the premises prior to Plaintiff's injuries. His testimony is therefore material to the defense of the claims asserted.

Pursuant to Judiciary Law § 773, the Court is further empowered to impose a fine not exceeding the amount of actual costs and expenses incurred by the aggrieved party, together with an additional statutory penalty of up to $250. (see Matter of Khan v Khan, 140 AD3d 1252 [2d Dept 2016]).

Accordingly, it is hereby

ORDERED, that the motion is GRANTED in its entirety; and it is further;

ORDERED, that Mohammed Abuhamda is hereby HELD IN CIVIL CONTEMPT of this Court for his willful disobedience of duly served subpoenas commanding his appearance for deposition; and it is further;

ORDERED, that Mohammed Abuhamda shall appear for deposition on a date to be scheduled within twenty (20) days of PERSONAL SERVICE of this Decision and Order upon him; and it is further;

ORDERED, that failure by Mohammed Abuhamda to appear as directed shall subject him to further contempt proceedings, including but not limited to the imposition of monetary fines and incarceration pursuant to Judiciary Law §§ 753 and 774; and it is further;

ORDERED, that Defendants shall have leave to submit an affirmation of legal fees and disbursements incurred in securing compliance with the subpoenas within ten (10) days of the date of this Order for the Court's determination of monetary sanctions under Judiciary Law § 773.

This constitutes the Decision and Order of the court.