Preview
FILED: KINGS COUNTY CLERK 10/19/2023 04:08 PM INDEX NO. 518679/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/02/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-------------------------------------------------------------X AFFIDAVIT
REISMAN PEIREZ REISMAN & CAPOBIANCO LLP, IN SUPPORT
Plaintiff, Index No. 518679/2023
- against -
Assigned to:
Justice to be Assigned
JACK BRACH a/k/a JACOB BRACH,
Motion No. 1
Defendant.
________________ ______-_ ____ _____ __ ___ _______________________Ç
STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
GLENN S. FORSTNER, being duly sworn, deposes and says:
1. I am an attorney with the firm of Capobianco & Associates,
attorneys for plaintiff Reisman Peirez Reisman Capobianco LLP ("Plaintiff"), a
judgment creditor of defendant Jack Brach a/k/a Jacob Brach (the "Judgment Debtor"),
and am fully familiar with the facts and circumstances set forth herein.
2. This affidavit is submitted in support of Plaintiff's motion for an
order:
(a) Pursuant to CPLR §§ 5223, 5224(a)(1) and (2) and 5251, and
Judiciary Law § 753, punishing Oscar Larrson (the "Witness") by fine or imprisonment,
or both, for contempt of court on the grounds that Witness willfully and deliberately
refused to obey the Subpoena Duces Tecum to Take Deposition of Witness with
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Restraining Notice duly served upon him (the "Subpoena") by Plaintiff in furtherance of
its efforts to collect the Judgment (defined below) entered against the Judgment Debtor;
(b) Compelling the Witness to appear for a deposition in
accordance with the Subpoena on a date certain designated by the Court;
(c) Compelling the Witness to produce all documents demanded
in the Subpoena at least ten (10) days prior to his scheduled deposition;
(d) Pursuant to Judiciary Law §773, awarding Plaintiff costs and
attorneys'
expenses in the form of reimbursement of the reasonable fees and
disbursements incurred by Plaintiff in connection with this motion; and
(e) Awarding Plaintiff such other and further relief as the Court
deems just, proper and equitable.
Background and Facts
3. Plaintiff brings this application to remedy the failure of the Witness
to respond to or even acknowledge the Subpoena, which was issued to obtain critical
information necessary to enforce Plaintiff's Judgment against the Judgment Debtor. (See
Subpoena, annexed hereto as Exhibit 1.)
4. On June 28, 2023, the Supreme Court, Kings County, entered a
judgment in favor of Plaintiff and against the Judgment Debtor in the amount of
$72,185.00 (the "Judgment"), of which $62,185.00, together with interest thereon from
June 28, 2023 at the rate of 9% per annum, remains due and unpaid. (See Judgment,
annexed hereto as Exhibit 2.)
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5. The Judgment resulted from the Judgment Debtor's failure to pay
legal fees owed to the Plaintiff. Prior to the entry of the Judgment, Plaintiff had
represented Judgment Debtor in numerous legal matters over a period of several years,
including Judgment Debtor's acquisition of Stellar Printing USA, Inc. a/k/a Stellar
Printing, Inc. (collectively referred to herein as "Stellar Printing"), the company where
the Witness is employed as a chief financial officer or its equivalent. During Plaintiff's
representation of the Judgment Debtor, the Judgment Debtor regularly referred to the
Witness as a key person in the operation of Stellar Printing and stated that he was
intricately familiar with the financial aspects of the Stellar Printing on multiple
occasions.
6. In addition, the Judgment Debtor recently left the country to travel to
Canada where he has family members who could assist him in secreting his assets in a
foreign country to avoid payment to his creditors and, upon information and belief, the
Witness has knowledge of these events and monies the Judgment Debtor has removed
from Stellar Printing. Thus, an examination of the Witness is necessary to inquire into
these circumstances.
7. Consequently, on or about August 14, 2023, the Subpoena was
issued pursuant to CPLR §5224. On August 23, 2023, the Subpoena was personally
served on the Witness at Stellar Printing to ascertain information concerning Judgment
Debtor's ability to satisfy the Judgment. (See Affidavit of Service for the Subpoena,
annexed hereto as Exhibit 3.)
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8. The Subpoena required the Witness to (a) produce company
financial records concerning monies and payments due the Judgment Debtor from Stellar
Printing; and (b) appear for a deposition at the office of Veritext on September 19, 2023.
Having not been contacted by the Witness or by anyone on his behalf after service of the
Subpoena, on September 19, 2023 at 10:00 a.m., I appeared and was fully prepared to
conduct the deposition of the Witness with a court stenographer present. However, the
Witness failed to appear for his scheduled deposition or produce any of the requested
Witness'
documents in blatant disregard of the Subpoena. Consequently, the default was
duly recorded by a court stenographer. (See transcript, annexed hereto as Exhibit 4.)
9. The Witness, who is undoubtedly acting in concert with or at the
direction of his employer, the Judgment Debtor, intentionally and willfully ignored the
Subpoena in an effort to frustrate the Plaintiff's ability to enforce its rights to collect
sums owed under the Judgment. The actions of the Witness, and the Judgment Debtor,
are clearly designed impede Plaintiff's rights and prevent it from obtaining information
on matters relevant to the satisfaction of the Judgment as authorized by law. As a result,
Plaintiff requests that the Witness be held in contempt of court.
The Witness Is in Contempt
10. CPLR §5223 provides that "at any time before a judgment is
satisfied or vacated, the judgment creditor may compel disclosure of all matter relevant to
the satisfaction of the judgment, by serving upon any person a subpoena". Disclosure of
judgment"
"all matter relevant to the satisfaction of the is a "generous standard and
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permits the creditor with a broad range of inquiry". (McKinney's Practice Commentaries
by David Siegel, C5223:2).
11. Under CPLR 5224, a judgment creditor may serve a subpoena upon
any person requiring attendance for the purpose of taking an oral deposition at a time and
place specified therein. CPLR 5224(a-1) provides that, in response to a subpoena, a
witness is obligated to provide full disclosure under CPLR 5223, i.e., "all matter relevant
satisfaction"
to of the Judgment.
12. In furtherance of its efforts to collect the Judgment and in
accordance with CPLR Article 52, Plaintiff duly caused the Subpoena to be served upon
the Judgment Debtor. The Witness failed to comply with the unequivocal terms of the
Subpoena failing to provide any of the requested documents or appear for a deposition.
13. It is well-established that the failure to comply with a subpoena is
punishable as a contempt of court. See, e.g., CPLR §5223 ("failure to comply with the
subpoena is punishable as a contempt of court"); CPLR §5251 ("refusal or willful neglect
of any person to obey a subpoena ... shall be punishable as a contempt of court"); and
Judiciary Law §753(A)(5) (a court has the power to punish for civil contempt where the
person subpoenaed as a witness, refuses or neglects to obey a subpoena).
14. Further, it is not necessary that disobedience of the subpoena be
deliberate or willful; rather the mere act of disobedience regardless of its motive, is
sufficient if such disobedience defeats, impairs or prejudices the rights of a party. Hush v
Taylor, 121 A.D.3d 1363 (3d Dep't 2014); Incorporated Village of Plandome Manor v.
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loannou, 54 A.D.3d 365, 862 N.Y.S.2d 592 (2d Dep't 2010). It is respectfully submitted
that, in the instant case, because he closely aligned with the Judgment Debtor, the
Witness'
disobedience of the Subpoena was an intentional, calculated and deliberate
attempt to impede Plaintiff's rights to enforce the Judgment and serves to prejudice the
Plaintiff's rights.
15. Moreover, the Court may find the Witness in contempt without
holding a hearing. (See Hush v. Taylor, 121 A.D.3d at 1365 ; Automated Waste Disposal
v. Mid-Hudson Waste, Inc., 50 A.D.3d 1073, 857 N.Y.S.2d 228 [2d Dep't 2008] ["a
hearing is not mandated in every instance where contempt is sought; it need only be
conducted if a factual dispute exists which cannot be resolved on the papers alone"].)
16. In the instant action, it is incontrovertible that, despite having been
duly served with the Subpoena pursuant to CPLR §§ 5224 (a) (1) and (2), the Witness
failed to appear for a deposition and produce the documents requested in the Subpoena
Witness'
(see Exh. 4). The deliberate disregard of the Subpoena clearly acts to frustrate
Plaintiff's ability to obtain information relative to its enforcement of the Judgment by
preventing the Plaintiff from obtaining information concerning monies and payments due
to the Judgment Debtor from Stellar Printing where he is the sole shareholder of the
company.
17. Plaintiff's ability to enforce the Judgment will continue to be
impaired until the Witness complies with the Subpoena. Therefore, the Court should
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order the Witness to appear for a deposition and produce the requested documents by a
date certain under CPLR Article 52.
18. Given his past behavior, it is respectfully requested that the Court
direct that the Witness produce the requested documents at least ten (10) days in advance
of the scheduled deposition date to allow Plaintiff to properly prepare for and conduct his
deposition.
Witness'
19. In order to compel compliance with the Subpoena, the
Witness should be held in contempt for blatantly ignoring the Subpoena.
20. In addition, Judiciary Law §773 allows for imprisonment and/or
fines to be imposed in a contempt proceeding. It has been held that the imposition of a
fine can include reasonable legal fees as part of statutorily recoverable costs and expenses
in the absence of actual damages under Judiciary Law §773. Hardwood Dimension &
Mouldings, Inc. v. Consolidated Edison, 77 A.D.2d 644 (2d Dep't 1980). Consequently,
the Witness should be held in contempt and directed to pay a fine in the amount of the
attorneys'
reasonable fees, costs and disbursements incurred by Plaintiff in connection
with this motion.
21. No previous application has been made for the relief requested
herein.
WHEREFORE, it is respectfully requested that Plaintiff's motion be
granted in its entirety together with such other and further relief as the Court deems just
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attorneys'
and proper, including costs and disbursements and reasonable fees and
expenses incurred herein.
GLENCS.FOR5TNER
Sworn to before me this
/Ý/d-day of October 2023
Notary Public
SUSAN ALBRECHT
Notary Public, State of New York
No. 01AL6227236
Qualified in Nassau County
Commission Expires Aug. 30 20.
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WORD COUNT CERTIFICATE
I hereby certify pursuant to Rule 17 of the Commercial Part Rules (22
NYCRR 202.8-b) that the foregoing Affidavit in Support was prepared on a computer
using Microsoft Word.
Word Count: The total number of words in this Affidavit in Support,
excluding this Statement is 1,739.
Dated: Mineola, New York
October 19, 2023
GLENN S. FORSTNER
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Preview
FILED: KINGS COUNTY CLERK 10/19/2023 04:08 PM INDEX NO. 518679/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/02/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------X AFFIDAVIT REISMAN PEIREZ REISMAN & CAPOBIANCO LLP, IN SUPPORT Plaintiff, Index No. 518679/2023 - against - Assigned to: Justice to be Assigned JACK BRACH a/k/a JACOB BRACH, Motion No. 1 Defendant. ________________ ______-_ ____ _____ __ ___ _______________________Ç STATE OF NEW YORK ) ) ss.: COUNTY OF NASSAU ) GLENN S. FORSTNER, being duly sworn, deposes and says: 1. I am an attorney with the firm of Capobianco & Associates, attorneys for plaintiff Reisman Peirez Reisman Capobianco LLP ("Plaintiff"), a judgment creditor of defendant Jack Brach a/k/a Jacob Brach (the "Judgment Debtor"), and am fully familiar with the facts and circumstances set forth herein. 2. This affidavit is submitted in support of Plaintiff's motion for an order: (a) Pursuant to CPLR §§ 5223, 5224(a)(1) and (2) and 5251, and Judiciary Law § 753, punishing Oscar Larrson (the "Witness") by fine or imprisonment, or both, for contempt of court on the grounds that Witness willfully and deliberately refused to obey the Subpoena Duces Tecum to Take Deposition of Witness with - 1 - 1 of 9 FILED: KINGS COUNTY CLERK 10/19/2023 04:08 PM INDEX NO. 518679/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/02/2023 Restraining Notice duly served upon him (the "Subpoena") by Plaintiff in furtherance of its efforts to collect the Judgment (defined below) entered against the Judgment Debtor; (b) Compelling the Witness to appear for a deposition in accordance with the Subpoena on a date certain designated by the Court; (c) Compelling the Witness to produce all documents demanded in the Subpoena at least ten (10) days prior to his scheduled deposition; (d) Pursuant to Judiciary Law §773, awarding Plaintiff costs and attorneys' expenses in the form of reimbursement of the reasonable fees and disbursements incurred by Plaintiff in connection with this motion; and (e) Awarding Plaintiff such other and further relief as the Court deems just, proper and equitable. Background and Facts 3. Plaintiff brings this application to remedy the failure of the Witness to respond to or even acknowledge the Subpoena, which was issued to obtain critical information necessary to enforce Plaintiff's Judgment against the Judgment Debtor. (See Subpoena, annexed hereto as Exhibit 1.) 4. On June 28, 2023, the Supreme Court, Kings County, entered a judgment in favor of Plaintiff and against the Judgment Debtor in the amount of $72,185.00 (the "Judgment"), of which $62,185.00, together with interest thereon from June 28, 2023 at the rate of 9% per annum, remains due and unpaid. (See Judgment, annexed hereto as Exhibit 2.) - 2 - 2 of 9 FILED: KINGS COUNTY CLERK 10/19/2023 04:08 PM INDEX NO. 518679/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/02/2023 5. The Judgment resulted from the Judgment Debtor's failure to pay legal fees owed to the Plaintiff. Prior to the entry of the Judgment, Plaintiff had represented Judgment Debtor in numerous legal matters over a period of several years, including Judgment Debtor's acquisition of Stellar Printing USA, Inc. a/k/a Stellar Printing, Inc. (collectively referred to herein as "Stellar Printing"), the company where the Witness is employed as a chief financial officer or its equivalent. During Plaintiff's representation of the Judgment Debtor, the Judgment Debtor regularly referred to the Witness as a key person in the operation of Stellar Printing and stated that he was intricately familiar with the financial aspects of the Stellar Printing on multiple occasions. 6. In addition, the Judgment Debtor recently left the country to travel to Canada where he has family members who could assist him in secreting his assets in a foreign country to avoid payment to his creditors and, upon information and belief, the Witness has knowledge of these events and monies the Judgment Debtor has removed from Stellar Printing. Thus, an examination of the Witness is necessary to inquire into these circumstances. 7. Consequently, on or about August 14, 2023, the Subpoena was issued pursuant to CPLR §5224. On August 23, 2023, the Subpoena was personally served on the Witness at Stellar Printing to ascertain information concerning Judgment Debtor's ability to satisfy the Judgment. (See Affidavit of Service for the Subpoena, annexed hereto as Exhibit 3.) - 3 - 3 of 9 FILED: KINGS COUNTY CLERK 10/19/2023 04:08 PM INDEX NO. 518679/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/02/2023 8. The Subpoena required the Witness to (a) produce company financial records concerning monies and payments due the Judgment Debtor from Stellar Printing; and (b) appear for a deposition at the office of Veritext on September 19, 2023. Having not been contacted by the Witness or by anyone on his behalf after service of the Subpoena, on September 19, 2023 at 10:00 a.m., I appeared and was fully prepared to conduct the deposition of the Witness with a court stenographer present. However, the Witness failed to appear for his scheduled deposition or produce any of the requested Witness' documents in blatant disregard of the Subpoena. Consequently, the default was duly recorded by a court stenographer. (See transcript, annexed hereto as Exhibit 4.) 9. The Witness, who is undoubtedly acting in concert with or at the direction of his employer, the Judgment Debtor, intentionally and willfully ignored the Subpoena in an effort to frustrate the Plaintiff's ability to enforce its rights to collect sums owed under the Judgment. The actions of the Witness, and the Judgment Debtor, are clearly designed impede Plaintiff's rights and prevent it from obtaining information on matters relevant to the satisfaction of the Judgment as authorized by law. As a result, Plaintiff requests that the Witness be held in contempt of court. The Witness Is in Contempt 10. CPLR §5223 provides that "at any time before a judgment is satisfied or vacated, the judgment creditor may compel disclosure of all matter relevant to the satisfaction of the judgment, by serving upon any person a subpoena". Disclosure of judgment" "all matter relevant to the satisfaction of the is a "generous standard and - 4 - 4 of 9 FILED: KINGS COUNTY CLERK 10/19/2023 04:08 PM INDEX NO. 518679/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/02/2023 permits the creditor with a broad range of inquiry". (McKinney's Practice Commentaries by David Siegel, C5223:2). 11. Under CPLR 5224, a judgment creditor may serve a subpoena upon any person requiring attendance for the purpose of taking an oral deposition at a time and place specified therein. CPLR 5224(a-1) provides that, in response to a subpoena, a witness is obligated to provide full disclosure under CPLR 5223, i.e., "all matter relevant satisfaction" to of the Judgment. 12. In furtherance of its efforts to collect the Judgment and in accordance with CPLR Article 52, Plaintiff duly caused the Subpoena to be served upon the Judgment Debtor. The Witness failed to comply with the unequivocal terms of the Subpoena failing to provide any of the requested documents or appear for a deposition. 13. It is well-established that the failure to comply with a subpoena is punishable as a contempt of court. See, e.g., CPLR §5223 ("failure to comply with the subpoena is punishable as a contempt of court"); CPLR §5251 ("refusal or willful neglect of any person to obey a subpoena ... shall be punishable as a contempt of court"); and Judiciary Law §753(A)(5) (a court has the power to punish for civil contempt where the person subpoenaed as a witness, refuses or neglects to obey a subpoena). 14. Further, it is not necessary that disobedience of the subpoena be deliberate or willful; rather the mere act of disobedience regardless of its motive, is sufficient if such disobedience defeats, impairs or prejudices the rights of a party. Hush v Taylor, 121 A.D.3d 1363 (3d Dep't 2014); Incorporated Village of Plandome Manor v. - 5 - 5 of 9 FILED: KINGS COUNTY CLERK 10/19/2023 04:08 PM INDEX NO. 518679/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/02/2023 loannou, 54 A.D.3d 365, 862 N.Y.S.2d 592 (2d Dep't 2010). It is respectfully submitted that, in the instant case, because he closely aligned with the Judgment Debtor, the Witness' disobedience of the Subpoena was an intentional, calculated and deliberate attempt to impede Plaintiff's rights to enforce the Judgment and serves to prejudice the Plaintiff's rights. 15. Moreover, the Court may find the Witness in contempt without holding a hearing. (See Hush v. Taylor, 121 A.D.3d at 1365 ; Automated Waste Disposal v. Mid-Hudson Waste, Inc., 50 A.D.3d 1073, 857 N.Y.S.2d 228 [2d Dep't 2008] ["a hearing is not mandated in every instance where contempt is sought; it need only be conducted if a factual dispute exists which cannot be resolved on the papers alone"].) 16. In the instant action, it is incontrovertible that, despite having been duly served with the Subpoena pursuant to CPLR §§ 5224 (a) (1) and (2), the Witness failed to appear for a deposition and produce the documents requested in the Subpoena Witness' (see Exh. 4). The deliberate disregard of the Subpoena clearly acts to frustrate Plaintiff's ability to obtain information relative to its enforcement of the Judgment by preventing the Plaintiff from obtaining information concerning monies and payments due to the Judgment Debtor from Stellar Printing where he is the sole shareholder of the company. 17. Plaintiff's ability to enforce the Judgment will continue to be impaired until the Witness complies with the Subpoena. Therefore, the Court should - 6 - 6 of 9 FILED: KINGS COUNTY CLERK 10/19/2023 04:08 PM INDEX NO. 518679/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/02/2023 order the Witness to appear for a deposition and produce the requested documents by a date certain under CPLR Article 52. 18. Given his past behavior, it is respectfully requested that the Court direct that the Witness produce the requested documents at least ten (10) days in advance of the scheduled deposition date to allow Plaintiff to properly prepare for and conduct his deposition. Witness' 19. In order to compel compliance with the Subpoena, the Witness should be held in contempt for blatantly ignoring the Subpoena. 20. In addition, Judiciary Law §773 allows for imprisonment and/or fines to be imposed in a contempt proceeding. It has been held that the imposition of a fine can include reasonable legal fees as part of statutorily recoverable costs and expenses in the absence of actual damages under Judiciary Law §773. Hardwood Dimension & Mouldings, Inc. v. Consolidated Edison, 77 A.D.2d 644 (2d Dep't 1980). Consequently, the Witness should be held in contempt and directed to pay a fine in the amount of the attorneys' reasonable fees, costs and disbursements incurred by Plaintiff in connection with this motion. 21. No previous application has been made for the relief requested herein. WHEREFORE, it is respectfully requested that Plaintiff's motion be granted in its entirety together with such other and further relief as the Court deems just - 7 - 7 of 9 FILED: KINGS COUNTY CLERK 10/19/2023 04:08 PM INDEX NO. 518679/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/02/2023 attorneys' and proper, including costs and disbursements and reasonable fees and expenses incurred herein. GLENCS.FOR5TNER Sworn to before me this /Ý/d-day of October 2023 Notary Public SUSAN ALBRECHT Notary Public, State of New York No. 01AL6227236 Qualified in Nassau County Commission Expires Aug. 30 20. - 8 - 8 of 9 FILED: KINGS COUNTY CLERK 10/19/2023 04:08 PM INDEX NO. 518679/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/02/2023 WORD COUNT CERTIFICATE I hereby certify pursuant to Rule 17 of the Commercial Part Rules (22 NYCRR 202.8-b) that the foregoing Affidavit in Support was prepared on a computer using Microsoft Word. Word Count: The total number of words in this Affidavit in Support, excluding this Statement is 1,739. Dated: Mineola, New York October 19, 2023 GLENN S. FORSTNER - 9 - 9 of 9