Preview
FILED: NEW YORK COUNTY CLERK 12/17/2019 04:10 PM INDEX NO. 650533/2018
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 12/17/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
Index NO.: 65033/2018
SEATTLE PRIME CAPITAL, INC.,
Plaintiff,
v.
NUM CHOK CORP.,
Defendant
X
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL
COMPLIANCE WITH PLAINTIFF'S INFORMATION SUBPOENA AND
RESTRAINING NOTICE
..
Respectfully submitted,
MESSNER REEVES, LLP
A igail Nitka, Esq.
18th
8 5 Third Ave, PlOOr
New YOrk, NY 10022
Attorneys for the Plaintiff Seattle
Prime Capital, Inc.
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TABLE OF CONTENTS
TABLE OF AUTHORITIES...................................................... ...............................
ii
PRELIMINARY STATEMENT ....................................................................................................
1
STATEMENT OF FACTS .................................
............................................................. 1
LEGAL AUTHORITY AND ARGUMENT..................................................................................
1
I. The Court is authorized to and should find, determine and hold Defendant in contempt for
itsfailure to respond to Plaintiff's information subpoena and restraining notice.......................
1
II. The Court Should Irapose a Fine as Recovery for the Actual Loss Sustained By Plaintiff
Including, But Not Limited to, Reimbursing Plaintiff for the Cost of Prosecuting This
Application, and the Legal Fees and Costs It Has Incurred In Connection With This
Application........... .................................................................................
3
III. The Court Should Compel Defendant to Respond to the Questionnaire Issued in
Plaintiff's Information Subpoena............................................. ........................................
4
IV. The Court Should Award Plaintiff the Attorney's Fees, Costs, and Disbursements
Incurred in Connection With This Motion... .......................................
.................
5
CONCLUSION............................................................ 5
........................................................
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TABLE OF AUTHORITIES
Cases
AXA Equitable Life Insurance Co. v. Epstein, 29 Misc.3d 689 (Sup. Ct.,N.Y. Co. 2010)...........2
Barclays Bank, PLC v. Hughes, 306 A.D.2d 406 (2d Dept. 2003) ............................................
4, 5
El-Dehdan v. El-Dehdan, 26 N.Y.3d 19 (2015) .......... ..................................................
2
Jack Mailman & Leonard Flug D.D.S., P.C. v. Belvecchio, 195 Misc. 2d 275 (N.Y. Sup. App.
Term 2002).................................................... 2
...................................................................
1st
Reuter Ltd v. Dow Jones Telerate. Inc., 231 A.D. 2d 337 (N.Y. App. Div. Dep't 1997) .........
5
Statutes
CPLR 2308.......................................................................... .........................
2, 4
CPLR 5210.......................................................... 2
....................................................
CPLR 5222...... 1
........................................................................................................
CPLR 5224...... ..........................................................................................
.......
2
CPLR 5251......... ............................................... .............................
1
New York Judiciary Law § 753......................................................................................................
2
New York Judiciary Law § 773.............................. ............................................................
3
Treatises
Richard C. Reilly, McKinney's Practice Commentaries, C5251:1 2
................................................
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PRELIMINARY STATEMENT
Since the initiation of this matter and throughout its adjudication Num Chok Corp.
("Defendant"
or "Judgment-Debtor") has failed to appear or otherwise respond to any summons,
order or any other judicial action. Defendant's persistent and repeated failures to acknowledge
the actions pending against itamounts to willful and centumacious behavior that should be
addressed by the Court.
This Court should find, determine and hold Defendant in civil contempt for itswill and
contumacious failure to respond to, and comply with, an information subpoena and restraining
notice that was duly served upon itand punish itby imposing a fine, imprisonment, or both,
according to law. Furthermore, this Court should compel Defendant to respond to and comply
with the information and restraining notice that were duly served upon it.
STATEMENT OF FACTS
A thorough recitation of pertinent facts may be found in the Affirmation of Abigail Nitka,
Esq. and will not be repeated herein.
LEGAL AUTHORITY AND ARGUMENT
L The Court is authorized to and should find. determine and hold Defêñdant in
contempt for its failure to respond to Plaintiff's information set;:::a and
restraining notice.
CPLR 5222 authorizes service of a restraining notice on a judgment debtor, forbidding it
from making or suffering any sale, assigarnent, transfer or interference with any property in which
he or she has an interest.
"Refusal or willful neglect of any person to obey a... restraining notice issued... pursuant
to [Article 52 of the CPLR]... shall... be punishable as a contempt of court. See CPLR 5251. See
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also Jack Mailman & Leonard Flue D.D.S.. P.C. v. Belvecchio, 195 Misc. 2d 275, 276 (N.Y. Sup.
App. Term 2002). CPLR 5210 provides that "[e]very court in which a special proceeding to
enforce a money judgment may be commenced, shall have power to punish a contempt of court
procedure."
committed with respect to an enforcement
"The procedure for the contempt punishment is not supplied by the CPLR, but by the
seq.)."
Judicimy Law (§ 750 et Richard C. Reilly, McKinney's Practice Commeñtaries, C5251:1.
Under New York's civil contempt statute, Judiciary Law § 753, "[a] court of record has power to
punish, by fine or imprisonment, or either, a neglect or violation of duty, or other misconduct, by
which a right or remedy of a party to a civil action or special proceeding, pcñdiñg in the court may
prejudiced."
be defeated, impaired, impeded, or El-Dehdan v. El Dehdan, 26 N.Y.3d 19, 29
(2015).
CPLR 2308(b) provides that "[iff a person fails to comply with a subpoena which is not
returnable in a court, the issuer or the person on whose behalf the subpoena was issued may move
compliance."
in the Supreme Court to compel S_ee CPLR 2308(b); See also AXA Equitable Life
Insurance Co. v. Eastein, 29 Misc.3d 689, 691 (Sup. Ct., N.Y. Co. 2010).
The recipient of an information subpoena is obligated to respond to itwithin seven (7) days
of receipt of the accompanying questions. S_ee CPLR 5224(a)(3).
On March 15, 2019 Defendant was served, via certified mail, return receipt requested, with
an information subpoena with restraining notice and information questionnaire ("Enforcement
Documents"). A copy of the Enforcement Documents are attached hereto as Exhibit F. A copy
of the return receipt, signed on behalf of Num Chok Corp. on March 21, 2019, establishing service,
pursuant to CPLR 5224(a)(3), of the Enforcement Documents is attached as Exhibit E.
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More than seven (7) days have passed since the service of the Information Subpoena
Questionnaire on Defendant and, in violation of CPLR 5224(a)(3), ithas failed to respond.
In addition to being served with the Enforcement Documents, Defendant was also properly
served with all of the pleadings that came before the judgments that were entered against it.
Defendant is well aware of the action that has been pending against itover the last two years and
five months. Defendant was duly served with a Summons and Complaint when the action was
firstinitiated. S_ee affidavit of service of Summons and Complaint of the California action attached
as Exhibit A. Defendant was also duly served with Summons and motion for summary judgmeñt
in lieu of complaint when Plaintiff moved to domesticate the California judgment in New York.
See affidavit of Service attached as Exhibit B.
The Court should take into account Defendant's complete disregard for the judicial process
as exemplified by its repeated refusal to appear or respeñd to the action taken against. It isclear
by Defendant's refusal to appear before the Superior Court of California and before this honorable
court, as well itsfailure to respond to the Enforcement Documents, that Defendant has no intention
of not only acknowledging the judgment that has been entered against and paying the debt itowes,
but also honoring itscivic duty to participate in the legal process. Defendant's actions, or rather
non-actions, warrant a finding of willful and contumacious behavior and should be prosecuted to
the fullest extent of the law.
IL The Court Should Impose a Fine as Recovery for the Actual Loss Sustained By
Plaintiff Includiñg. But Not Limited to, Reimbursing Plaintiff for the Cost of
Prosecuting This Application, and the Legal Fees and Costs It Has Incurred In
Conñêction With This Apulication.
Pursuant to Judiciary Law § 773, upon a finding of contempt, a fine "must be imposed
upon the offender, and collected, and paid over to the aggrieved party, under the direction of the
court."
S_ee N.Y. Judiciary Law § 773. "The party seeking a contempt order must prove actual
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loss, failing which the court may only impose a fine which does not exceed the complainant's
$250."
costs and expenses, plus an additional Barclays Bank. PLC v. Hughes, 306 A.D.2d 406,
407 (2d Dept. 2003) (internal quotations and citations omitted).
Plaintiff continues to sustain a loss relating to the judgment against Defendant that
ordered payment of $29,324.37 to a debt owed. S_ee Exhibit C. Plaintiff has also been
satisfy
forced to retain counsel and filemultiple court actions in order to collect this debt resulting in
further loss. The interest on the debt and the legal fees associated with collecting the debt
continue to grow as more time passes, thereby causing Plaintiff to continue to suffer a perpetual
loss. The loss is quantifiable and certain, as well as ever growing, and warrants a finding of
contempt and the applicable punishnients therein.
IIL The Court Shculd Comnel Defeñdsñt to Respond to the Questiennaire Issued in
Plaintiff's Information Subnoena.
Pursuant to CPLR 2308(b)(1), this court is empowered to issue an order compelling
compliance with a non-judicial subpoena and to award the payment of damages sustained by the
moving party as a result of the deponent's noncompliance. Reuter Ltd v. Dow Jones Telerate, Inc.,
1"
231 A.D. 2d 337, 341 (N.Y. App. Div. Dep't 1997).
CPLR 2308(b) provides that "[i]f a person fails to comply with a subpoena which is not
returnable in a court, the issuer or the person on whose behalf the subpoena was issued may move
compliance."
in the supreme court to compel CPLR 2308(b); see also AXA Eauitable Life
Insurance Co. v. Epstein, 29 Misc.3d 689, 691 (Sup. Ct., N.Y. Co. 2010).
Here, Defendant has failed to respond to Enforcement Documents. Accordingly, Plaintiff
is entitled to make a motion to compel compliance with the Enforcement Documents. The court
has the ability to, and should, issue such an order to allow Plaintiff to enforce the judgment and
recoup the significant losses ithas already sustained and continues to sustain.
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IV. The Court Should Award Plaintiff the Attorney's Fees. Costs. and Disbursements
Incurred in Cc.ññcction With This Motion.
Legal fees and disbursements are recoverable upon a finding contempt. See Barclays
Bank, 306 A.D.2d at 407.
As demonstrated above, the Court should find, determine and hold Defendant in contempt
for itsfailure to respond to the Enforcement Documents. Upon this finding of contempt, the Court
should order Defendant to reimburse Plaintiff for the legal fees and disbursements incurred in
filing this motion.
CONCLUSION
Plaintiff respectfully requests the Court to compel Compliance with Plaintiff's
Information Subpoena and Restraining Notice, and for such other and further relief as may be
just and proper.
Dated: December 17, 2019
Respectfully submitted,
MESSNER REEVES, LLP
1 11 Nitka, Esq.
18th
8 5 Third Ave, PlOOr
New York, NY 10022
Attorneys for the Plaintiff Seattle
Prime Capital, Inc.
To: Num Chok Corporation
49th
404 West street
New York, NY 10019
{03850352 / 1} 5
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Preview
FILED: NEW YORK COUNTY CLERK 12/17/2019 04:10 PM INDEX NO. 650533/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 12/17/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X Index NO.: 65033/2018 SEATTLE PRIME CAPITAL, INC., Plaintiff, v. NUM CHOK CORP., Defendant X MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL COMPLIANCE WITH PLAINTIFF'S INFORMATION SUBPOENA AND RESTRAINING NOTICE .. Respectfully submitted, MESSNER REEVES, LLP A igail Nitka, Esq. 18th 8 5 Third Ave, PlOOr New YOrk, NY 10022 Attorneys for the Plaintiff Seattle Prime Capital, Inc. {03850352 / l} 1 of 8 FILED: NEW YORK COUNTY CLERK 12/17/2019 04:10 PM INDEX NO. 650533/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 12/17/2019 TABLE OF CONTENTS TABLE OF AUTHORITIES...................................................... ............................... ii PRELIMINARY STATEMENT .................................................................................................... 1 STATEMENT OF FACTS ................................. ............................................................. 1 LEGAL AUTHORITY AND ARGUMENT.................................................................................. 1 I. The Court is authorized to and should find, determine and hold Defendant in contempt for itsfailure to respond to Plaintiff's information subpoena and restraining notice....................... 1 II. The Court Should Irapose a Fine as Recovery for the Actual Loss Sustained By Plaintiff Including, But Not Limited to, Reimbursing Plaintiff for the Cost of Prosecuting This Application, and the Legal Fees and Costs It Has Incurred In Connection With This Application........... ................................................................................. 3 III. The Court Should Compel Defendant to Respond to the Questionnaire Issued in Plaintiff's Information Subpoena............................................. ........................................ 4 IV. The Court Should Award Plaintiff the Attorney's Fees, Costs, and Disbursements Incurred in Connection With This Motion... ....................................... ................. 5 CONCLUSION............................................................ 5 ........................................................ {03850352 / 1) 2 of 8 FILED: NEW YORK COUNTY CLERK 12/17/2019 04:10 PM INDEX NO. 650533/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 12/17/2019 TABLE OF AUTHORITIES Cases AXA Equitable Life Insurance Co. v. Epstein, 29 Misc.3d 689 (Sup. Ct.,N.Y. Co. 2010)...........2 Barclays Bank, PLC v. Hughes, 306 A.D.2d 406 (2d Dept. 2003) ............................................ 4, 5 El-Dehdan v. El-Dehdan, 26 N.Y.3d 19 (2015) .......... .................................................. 2 Jack Mailman & Leonard Flug D.D.S., P.C. v. Belvecchio, 195 Misc. 2d 275 (N.Y. Sup. App. Term 2002).................................................... 2 ................................................................... 1st Reuter Ltd v. Dow Jones Telerate. Inc., 231 A.D. 2d 337 (N.Y. App. Div. Dep't 1997) ......... 5 Statutes CPLR 2308.......................................................................... ......................... 2, 4 CPLR 5210.......................................................... 2 .................................................... CPLR 5222...... 1 ........................................................................................................ CPLR 5224...... .......................................................................................... ....... 2 CPLR 5251......... ............................................... ............................. 1 New York Judiciary Law § 753...................................................................................................... 2 New York Judiciary Law § 773.............................. ............................................................ 3 Treatises Richard C. Reilly, McKinney's Practice Commentaries, C5251:1 2 ................................................ {03850352 / 1} ii 3 of 8 FILED: NEW YORK COUNTY CLERK 12/17/2019 04:10 PM INDEX NO. 650533/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 12/17/2019 PRELIMINARY STATEMENT Since the initiation of this matter and throughout its adjudication Num Chok Corp. ("Defendant" or "Judgment-Debtor") has failed to appear or otherwise respond to any summons, order or any other judicial action. Defendant's persistent and repeated failures to acknowledge the actions pending against itamounts to willful and centumacious behavior that should be addressed by the Court. This Court should find, determine and hold Defendant in civil contempt for itswill and contumacious failure to respond to, and comply with, an information subpoena and restraining notice that was duly served upon itand punish itby imposing a fine, imprisonment, or both, according to law. Furthermore, this Court should compel Defendant to respond to and comply with the information and restraining notice that were duly served upon it. STATEMENT OF FACTS A thorough recitation of pertinent facts may be found in the Affirmation of Abigail Nitka, Esq. and will not be repeated herein. LEGAL AUTHORITY AND ARGUMENT L The Court is authorized to and should find. determine and hold Defêñdant in contempt for its failure to respond to Plaintiff's information set;:::a and restraining notice. CPLR 5222 authorizes service of a restraining notice on a judgment debtor, forbidding it from making or suffering any sale, assigarnent, transfer or interference with any property in which he or she has an interest. "Refusal or willful neglect of any person to obey a... restraining notice issued... pursuant to [Article 52 of the CPLR]... shall... be punishable as a contempt of court. See CPLR 5251. See {03850352/ 1} 4 of 8 FILED: NEW YORK COUNTY CLERK 12/17/2019 04:10 PM INDEX NO. 650533/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 12/17/2019 also Jack Mailman & Leonard Flue D.D.S.. P.C. v. Belvecchio, 195 Misc. 2d 275, 276 (N.Y. Sup. App. Term 2002). CPLR 5210 provides that "[e]very court in which a special proceeding to enforce a money judgment may be commenced, shall have power to punish a contempt of court procedure." committed with respect to an enforcement "The procedure for the contempt punishment is not supplied by the CPLR, but by the seq.)." Judicimy Law (§ 750 et Richard C. Reilly, McKinney's Practice Commeñtaries, C5251:1. Under New York's civil contempt statute, Judiciary Law § 753, "[a] court of record has power to punish, by fine or imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pcñdiñg in the court may prejudiced." be defeated, impaired, impeded, or El-Dehdan v. El Dehdan, 26 N.Y.3d 19, 29 (2015). CPLR 2308(b) provides that "[iff a person fails to comply with a subpoena which is not returnable in a court, the issuer or the person on whose behalf the subpoena was issued may move compliance." in the Supreme Court to compel S_ee CPLR 2308(b); See also AXA Equitable Life Insurance Co. v. Eastein, 29 Misc.3d 689, 691 (Sup. Ct., N.Y. Co. 2010). The recipient of an information subpoena is obligated to respond to itwithin seven (7) days of receipt of the accompanying questions. S_ee CPLR 5224(a)(3). On March 15, 2019 Defendant was served, via certified mail, return receipt requested, with an information subpoena with restraining notice and information questionnaire ("Enforcement Documents"). A copy of the Enforcement Documents are attached hereto as Exhibit F. A copy of the return receipt, signed on behalf of Num Chok Corp. on March 21, 2019, establishing service, pursuant to CPLR 5224(a)(3), of the Enforcement Documents is attached as Exhibit E. {03850352 / 1} 2 5 of 8 FILED: NEW YORK COUNTY CLERK 12/17/2019 04:10 PM INDEX NO. 650533/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 12/17/2019 More than seven (7) days have passed since the service of the Information Subpoena Questionnaire on Defendant and, in violation of CPLR 5224(a)(3), ithas failed to respond. In addition to being served with the Enforcement Documents, Defendant was also properly served with all of the pleadings that came before the judgments that were entered against it. Defendant is well aware of the action that has been pending against itover the last two years and five months. Defendant was duly served with a Summons and Complaint when the action was firstinitiated. S_ee affidavit of service of Summons and Complaint of the California action attached as Exhibit A. Defendant was also duly served with Summons and motion for summary judgmeñt in lieu of complaint when Plaintiff moved to domesticate the California judgment in New York. See affidavit of Service attached as Exhibit B. The Court should take into account Defendant's complete disregard for the judicial process as exemplified by its repeated refusal to appear or respeñd to the action taken against. It isclear by Defendant's refusal to appear before the Superior Court of California and before this honorable court, as well itsfailure to respond to the Enforcement Documents, that Defendant has no intention of not only acknowledging the judgment that has been entered against and paying the debt itowes, but also honoring itscivic duty to participate in the legal process. Defendant's actions, or rather non-actions, warrant a finding of willful and contumacious behavior and should be prosecuted to the fullest extent of the law. IL The Court Should Impose a Fine as Recovery for the Actual Loss Sustained By Plaintiff Includiñg. But Not Limited to, Reimbursing Plaintiff for the Cost of Prosecuting This Application, and the Legal Fees and Costs It Has Incurred In Conñêction With This Apulication. Pursuant to Judiciary Law § 773, upon a finding of contempt, a fine "must be imposed upon the offender, and collected, and paid over to the aggrieved party, under the direction of the court." S_ee N.Y. Judiciary Law § 773. "The party seeking a contempt order must prove actual {03850352 / 1} 3 6 of 8 FILED: NEW YORK COUNTY CLERK 12/17/2019 04:10 PM INDEX NO. 650533/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 12/17/2019 loss, failing which the court may only impose a fine which does not exceed the complainant's $250." costs and expenses, plus an additional Barclays Bank. PLC v. Hughes, 306 A.D.2d 406, 407 (2d Dept. 2003) (internal quotations and citations omitted). Plaintiff continues to sustain a loss relating to the judgment against Defendant that ordered payment of $29,324.37 to a debt owed. S_ee Exhibit C. Plaintiff has also been satisfy forced to retain counsel and filemultiple court actions in order to collect this debt resulting in further loss. The interest on the debt and the legal fees associated with collecting the debt continue to grow as more time passes, thereby causing Plaintiff to continue to suffer a perpetual loss. The loss is quantifiable and certain, as well as ever growing, and warrants a finding of contempt and the applicable punishnients therein. IIL The Court Shculd Comnel Defeñdsñt to Respond to the Questiennaire Issued in Plaintiff's Information Subnoena. Pursuant to CPLR 2308(b)(1), this court is empowered to issue an order compelling compliance with a non-judicial subpoena and to award the payment of damages sustained by the moving party as a result of the deponent's noncompliance. Reuter Ltd v. Dow Jones Telerate, Inc., 1" 231 A.D. 2d 337, 341 (N.Y. App. Div. Dep't 1997). CPLR 2308(b) provides that "[i]f a person fails to comply with a subpoena which is not returnable in a court, the issuer or the person on whose behalf the subpoena was issued may move compliance." in the supreme court to compel CPLR 2308(b); see also AXA Eauitable Life Insurance Co. v. Epstein, 29 Misc.3d 689, 691 (Sup. Ct., N.Y. Co. 2010). Here, Defendant has failed to respond to Enforcement Documents. Accordingly, Plaintiff is entitled to make a motion to compel compliance with the Enforcement Documents. The court has the ability to, and should, issue such an order to allow Plaintiff to enforce the judgment and recoup the significant losses ithas already sustained and continues to sustain. {03850352/ l} 4 7 of 8 FILED: NEW YORK COUNTY CLERK 12/17/2019 04:10 PM INDEX NO. 650533/2018 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 12/17/2019 IV. The Court Should Award Plaintiff the Attorney's Fees. Costs. and Disbursements Incurred in Cc.ññcction With This Motion. Legal fees and disbursements are recoverable upon a finding contempt. See Barclays Bank, 306 A.D.2d at 407. As demonstrated above, the Court should find, determine and hold Defendant in contempt for itsfailure to respond to the Enforcement Documents. Upon this finding of contempt, the Court should order Defendant to reimburse Plaintiff for the legal fees and disbursements incurred in filing this motion. CONCLUSION Plaintiff respectfully requests the Court to compel Compliance with Plaintiff's Information Subpoena and Restraining Notice, and for such other and further relief as may be just and proper. Dated: December 17, 2019 Respectfully submitted, MESSNER REEVES, LLP 1 11 Nitka, Esq. 18th 8 5 Third Ave, PlOOr New York, NY 10022 Attorneys for the Plaintiff Seattle Prime Capital, Inc. To: Num Chok Corporation 49th 404 West street New York, NY 10019 {03850352 / 1} 5 8 of 8