The opinion
Calen Invs. LLC v Notias
2024 NY Slip Op 34272(U)
November 29, 2024
Supreme Court, New York County
Docket Number: Index No. 654142/2020
Judge: Joel M. Cohen
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INDEX NO. 654142/2020
NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 11/29/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M
----------------------------------------------------------------------------------- X
CALENINVESTMENTSLLC INDEX NO. 654142/2020
Plaintiff,
MOTION DATE 10/17/2024
- V -
MOTION SEQ. NO. 011
NIKOLAOS NOTIAS,
Defendant. DECISION+ ORDER ON
MOTION
----------------------------------------------------------------------------------- X
HON. JOEL M. COHEN:
The following e-filed documents, listed by NYSCEF document number (Motion 011) 237,238,239, 240,
241,242,243,244,245,246,247,248,249
were read on this motion for CONTEMPT
Plaintiff Caelen Investments LLC ("Caelen") moves to compel Defendant Nikolaos
Notias ("Notias") to comply with an information subpoena issued pursuant to CPLR 5224(a)(3)
(the "Information Subpoena") and a subpoena duces tecum issued pursuant to CPLR 5224(a)(2)
(the "Document Subpoena," and collectively, the "Subpoenas"). Caelen also moves for a finding
of contempt, alleging that Notias failed to comply with the Subpoenas. Caelen also seeks an
award of reasonable attorneys' fees and costs incurred in connection with this motion. Notias
opposes. Upon the foregoing documents and for the reasons discussed below, Caelen's motion is
granted.
1. Motion to Compel
A judgment creditor may "compel disclosure of all matter relevant to the satisfaction of
the judgment, by serving upon any person a subpoena, which ... shall state that false swearing
or failure to comply with the subpoena is punishable as a contempt of court" (CPLR § 5223; see
also Gryphon Domestic VL LLC v GBR Info. Servs., Inc., 29 AD3d 392, 393 [1 st Dept 2006]).
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Under CPLR 2308(b )(1), the issuer of a subpoena "may move in the supreme court to compel
compliance." Failure to comply with an information subpoena issued pursuant to Article 52 of
the CPLR is governed by CPLR 2308 (CPLR § 5224 [a] [iv]). The Court must therefore
determine whether "the subpoena was authorized," and, if so, "it shall order compliance ... "
(CPLR § 2308 [b] [l]).
CPLR 5224(a)(3) notes that information subpoenas should be "accompanied by a copy
and original of written questions and a prepaid, addressed return envelope. Service ... may be
made by registered or certified mail, return receipt requested." The Information Subpoena at
issue here, along with a copy, was served via certified mail with return receipt requested, and it
included the required prepaid, addressed return envelope (see NYSCEF 238 ["DiBlasi Aff."] ,i
14; NYSCEF 241 ["Information Subpoena"]). Accordingly, compliance with the requirements of
CPLR 2308 and CPLR 5224(a)(3) has been shown and Notias must comply with the Information
Subpoena.
In his opposition, Notias contends that he has responded to the Information Subpoena,
but he also states that he "will supplement his responses and provide additional details and
information as he continues review and consideration of the Plaintiffs subpoenas" (NYSCEF
246 ["Memo Opp."]). A party subject to an information subpoena has seven days after receipt to
respond (CPLR 5224 § [a] [3]). Having received the subpoena on August 22, 2024, Notias was
required to respond by August 29, 2024; he is not free to take an unlimited time to "supplement"
past-due responses. Caelen has pointed out patent deficiencies in Notias's responses to the
Information Subpoena (NYSCEF 249), and no filings have been made on the docket indicating
that these deficiencies have been addressed.
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As to the Document Subpoena, Notias's responses were likewise untimely and patently
deficient, lacking responsive documents for at least two of Notias's JPMorgan Chase accounts
(DiBlasi Aff. ,i 13). Though Notias's counsel stated that further responsive documents would be
provided at a later date, no subsequent production has occurred (id.; NYSCEF 240). The
Document Subpoena contained the information required under CPLR 5223 and was thus
properly issued (NYSCEF 239). Accordingly, Notias must comply with the Document
Subpoena.
2. Motion for Contempt
Under CPLR 5251, "[r]efusal or willful neglect of any person to obey a subpoena ...
issued ... pursuant to this title ... shall ... be punishable as a contempt of court." A finding of
civil contempt under Section 753 of the Judiciary Law requires that the movant establish "by
clear and convincing evidence that defendant violated a lawful, clear mandate of the court, of
which he had knowledge, and that such violation resulted in prejudice to plaintiffs rights" (Pac.
All. Asia Opportunity Fund L.P. v Wan, 199 AD3d 423 [1st Dept 2021] citing El-Dehdan v El-
Dehdan, 26 NY3d 19, 29 [2015]).
Notias had actual notice of the Subpoenas as evidenced by contemporaneous emails from
Notias's counsel, demonstrating that his failure to comply was willful (NYSCEF 240,242).
Further, Notias's failure to comply has prejudiced Caelen's ability to seek information necessary
to pursue satisfaction of its judgments. Since Caelen' s moving papers establish the essential
elements of contempt, and Notias's opposition fails to contradict them, no hearing is required to
hold Notias in contempt (see Goldsmith v Goldsmith, 261 AD2d 576, 577 [2d Dept 1999]).
3. Attorneys' Fees and Costs
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Under Judiciary Law§ 773, when there is a showing of actual loss resulting from proven
misconduct, a "fine, sufficient to indemnify the aggrieved party, must be imposed upon the
offender." Courts have found that this fine can include attorneys' fees (see e.g. Gottlieb v
Gottlieb, 137 AD3d 614, 618 [1st Dept 2016] ["[l]egal fees that constitute actual loss or injury as
a result of the contempt are routinely awarded as part of the fine"]; Children's Viii. v
Greenburgh Eleven Teachers' Union Fed'n of Teachers, Local 1532, AFT, AFL-CIO, 249
A.D2d 435,435 [2d Dept 1998] ["Judiciary Law§ 773 permits recovery of attorney fees from
the offending party by a party aggrieved by the contemptuous conduct"]). Accordingly, Caelen is
entitled to an award of reasonable attorneys' fees and costs incurred in connection with this
motion.
4. Notias 's "Cross Motion"
Failure to object to the Information Subpoena or move to quash it within the seven-day
window prescribed by CPLR 5224(a)(3) amounts to waiver (Lantern Endowment Partners, LP v
Bluefin Servicing Ltd., 2023 N.Y. Slip Op. 31240[U], 4 [Sup Ct, NY County 2023]). Thus to the
extent that Notias's untimely opposition (which does not seek affirmative relief) could be
construed as a cross motion, it is denied.
Accordingly, it is
ORDERED that Plaintiffs motion is granted; it is further
ORDERED that Defendant must comply with the information subpoena issued pursuant
to CPLR 5224(a)(3) and the subpoena duces tecum issued pursuant to CPLR 5224(a)(2) no later
than fourteen (14) days within entry of this Order; it is further
ORDERED that any objections by Defendant to the requests for information contained
in the Subpoenas, except for attorney-client privilege, are waived; it is further
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NYSCEF DOC. NO. 250 RECEIVED NYSCEF: 11/29/2024
ORDERED that Defendant is held in contempt of Court for willingly failing to comply
with the Subpoenas; it is further
ORDERED that Defendant shall pay a one-time $150 fine to Plaintiff pursuant to CPLR
2308(a) for failure to comply with the subpoena duces tecum; it is further
ORDERED that Defendant shall pay a one-time $50 fine to Plaintiff pursuant to CPLR
2308(b) for failure to comply with the information subpoena; and it is further
ORDERED that Plaintiff shall recover the costs and fees reasonably incurred in
connection with the instant motion, including reasonable attorneys' fees, upon the submission of
an application therefor, including supporting documentation, within fourteen (14) days of the
entry of this Order.
This constitutes the decision and order of the Court.
11/29/2024
DATE JOEL M. COHEN, J.S.C.
~
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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