Slade v Brodie

Supreme Court, Kings County

Decided on March 17, 2026

Index No. 544643/2025

Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of petition and verified petition filed on December 23, 2025, by Joseph B. Slade (hereinafter the petitioner) under motion sequence number one for an order holding Chanel Evion Brodie (hereinafter the respondent) in contempt. The petition is unopposed.

-Notice of petition

-Verified petition

-Affirmation in support

Exhibits A-H

-Affidavit of service

BACKGROUND

On December 23, 2025, the plaintiff commenced the instant special proceeding by filing a notice of petition and verified petition with the Kings County Clerk's office.

In sum and substance, the verified petition alleges the following facts. Petitioner is the plaintiff in an action in the Supreme Court of the state of New York Kings County under index number 53491/ 2018 with the defendant Marilyn Slade. The respondent is the daughter of Marilyn Slade and has financial and personal information as to the defendant in the action for [*2]divorce. The respondent was duly served with a subpoena duces tecum to take a deposition. The respondent failed to appear for the deposition. By refusing to appear pursuant to the subpoena duces tecum, the respondent defeated, impaired, impeded, and prejudiced the rights of the petitioner.

LAW AND APPLICATION

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 (see Judiciary Law § 753 [A] [1]). 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 (Wells Fargo Bank, N.A. v. Confino, 175 AD3d 533, 535-536 [2d Dept 2019], quoting Matter of Fruchthandler v Fruchthandler, 161 AD3d 1151, 1153 [2d Dept 2018], quoting El-Dehdan v El-Dehdan, 114 AD3d 4, 12-13 [2d Dept 2013], affd 6 NYY3d 19, 29 [2015]). To sustain a finding of civil contempt for violation of the terms of an order, the movant must "establish by clear and convincing evidence that the party charged with contempt had actual knowledge of a lawful, clear and unequivocal order, that the charged party [willfully] disobeyed that order, and that this conduct prejudiced the opposing party's rights" (Matter of Michelle L. v Steven M., 227 AD3d 1159, 1163-1164 [3d Dept 2024]).

CPLR 105 [u] permits a verified pleading to be used as an affidavit (see CPLR 105 [u]). Here, the petition was verified by the petitioner and therefore could be considered as an affidavit in support of the petition pursuant to CPLR 105 (u) (see CPLR 105 [u]).

The petition alleges that although duly served with subpoena duces tecum to be deposed, the respondent failed to appear for a deposition.

At oral argument of the petition, the petitioner's counsel stated that the petitioner was seeking an order finding the respondent in contempt because the respondent lied about her residence at her deposition. Either the respondent complied with the subpoena by appearing for the deposition or the respondent did not appear for deposition. Petitioner's counsel did not explain the discrepancy between the allegations of fact in the verified petition and the grounds for the contempt that the counsel stated at oral argument.

Petitioner submitted a purported affirmation of Joseph A. Altman, the petitioner's counsel in support of the petition. The affirmation of petitioner's counsel did not comply with CPLR 2106 as amended (CPLR 2106; see Patrick M. Connors, The Blockbuster Amendment to CPLR 2106 Permitting Any Person to Submit an Affirmation in Lieu of an Affidavit, 98 St. John's L. Rev. 375, 381 [2024] [analyzing the amended CPLR 2106]). The affirmation lacks the language prescribed in the statute, or language that is in substantially the following form: "I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law" (see CPLR 2106). Here, "[t]here is no acknowledgement of the laws of New York or the possible penalties of fine or imprisonment if the statements made therein were not true" (R.F. v L.K., 82 Misc 3d 1221[A], 2024 NY Slip Op 50358[U], *7 [Sup Ct, Westchester County 2024].

Because the affirmation by Altman is insufficient and does not encompass the requisite language or language substantially reflective of that required in the statute, the "[a]ffirmation is not in admissible form and cannot be relied upon as proof of facts set forth therein" (id., citing [*3]Graham Ct. Owners Corp. v Memminger, 81 Misc 3d 1248[A], *2 n 5 [Civ Ct, NY County 2024]; see Grandsard v Hutchison, 2024 WL 1957086, *1 [Sup Ct, NY County 2024], affd 227 AD3d 491, 491 [1st Dept 2024]).

In sum, the petitioner did not establish by clear and convincing evidence that the respondent had actual knowledge of a lawful, clear, and unequivocal order, that the respondent willfully disobeyed that order, and that this conduct prejudiced the petitioner's rights (see Matter of Michelle L. v. Steven M., 227 AD3d 1159, 1163-1164 [3d Dept 2024]).

CONCLUSION

The petition by Joseph B. Slade for an order holding the respondent Chanel Evion Brodie in contempt is denied and the petition is dismissed.

The foregoing constitutes the decision and order of this Court.

ENTER:

J.S.C.