Preview
FILED: NEW YORK COUNTY CLERK 04/16/2024 10:57 AM INDEX NO. 153549/2024
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/16/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------------------------------------------X Index No.:
ANGELO GARCIA,
AFFIRMATION IN
Petitioner, SUPPORT
- against -
SMJ CONTRACTOR LLC,
Respondent.
---------------------------------------------------------------------------X
RICHARD M. MANIATIS, ESQ., an attorney duly admitted to practice law in the
Courts of the State of New York, affirms the following under penalties of perjury:
1. I am a partner at the law firm ZAREMBA BROWN PLLC, attorneys for the
Petitioner herein, and am fully familiar with the facts and circumstances of the within action.
2. This affirmation is respectfully submitted in support of Petitioner’s application
seeking an Order, pursuant to CPLR §§ 2308(a), 2301, 2302, 2303 and 2308, holding SMJ
CONTRACTOR LLC in contempt of Court for failing to completely comply with Petitioner’s
Subpoena Duces Tecum, dated September 29, 2023, which was personally served on SMJ
CONTRACTOR LLC on October 2, 2023. Alternatively, Petitioner seeks the issuance by this
Honorable Court of an Order directing SMJ CONTRACTOR LLC to produce the
records/documents/materials/information requested in the Subpoena Duces Tecum by a date
certain, on threat of being held in contempt for failure to respond accordingly.
3. Petitioner’s Subpoena Duces Tecum requests production of several documents in
SMJ CONTRACTOR LLC custody and control, including but not limited to, employment
records, photographs and the contracts pertaining to the work performed at 23-30 Borden Avenue,
Queens, NY on April 29, 2023.
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4. This action arises from a construction accident that occurred on April 29, 2023
when Petitioner was caused to sustain severe personal injuries while in the course of his
employment at Defendants’ premises located 23-30 Borden Avenue, Queens, NY. At the time,
Petitioner was employed by SMJ CONTRACTOR LLC, a subcontractor on the job.
PROCEDURAL HISTORY
5. Petitioner commenced the instant action by the filing of a Summons and Complaint
on or about September 28, 2023 a copy of which is attached hereto as Exhibit “A”.
6. Defendants, Defendants, 23-30 BORDEN OWNER LLC and MARCH
ASSOCIATES CONSTRUCTION INC. served their answer on January 17, 2024. Defendants,
BAYPORT CONSTRUCTION CORP., BAYPORT CONSTRUCTION & DEVELOPMENT
CORP., and BAYPORT CONSTRUCTION OF NY, INC. served their answer on February 7,
2024. See Exhibit “B”.
7. As Petitioner had reason to believe that SMJ CONTRACTOR LLC is in
possession of the operative construction contract between it and the general contractor for the very
work Petitioner was performing at the time of the accident, Petitioner’s employment records and
other pertinent documents as enumerated in the subpoena. Said documents are necessary to
Petitioner’s prosecution of this matter. Petitioner served a Subpoena Duces Tecum on SMJ
CONTRACTOR LLC on October 2, 2023. A copy of the Subpoena Duces Tecum, dated
September 29, 2023, along with the Affidavit of Service in regard to said Subpoena, are
collectively attached hereto as Exhibit “C”.
8. On February 26, 2024, plaintiff sent a good faith letter to SMJ CONTRACTOR
LLC, via FedEx Overnight Mail, at the same address at which said entity was served with the
Subpoena Duces Tecum, in an effort to secure compliance with the subpoena without court
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intervention. To date, despite good faith efforts, SMJ CONTRACTOR LLC has not complied
with the Subpoena Duces Tecum or responded to the aforementioned good faith correspondence.
A copy of the good letter is attached as Exhibit “D”.
9. To date, SMJ CONTRACTOR LLC has not responded to Petitioner’s Subpoena
dated September 29, 2023. Despite good faith efforts, it appears that SMJ CONTRACTOR LLC
has no intentions of complying with Petitioner’s Subpoena Duces Tecum.
ARGUMENT
10. NY CLS CPLR § 2308(a) states:
Failure to comply with a subpoena issued by a judge, clerk or
officer of the court shall be punishable as a contempt of court. If
the witness is a party the court may also strike his or her pleadings.
A subpoenaed person shall also be liable to the person on whose
behalf the subpoena was issued for a penalty not exceeding one
hundred fifty dollars and damages sustained by reason of the failure
to comply. A court may issue a warrant directing a sheriff to bring
the witness into court. If a person so subpoenaed attends or is
brought into court, but refuses without reasonable cause to be
examined, or to answer a legal and pertinent question, or to produce
a book, paper or other thing which he or she was directed to produce
by the subpoena, or to subscribe his or her deposition after it has
been correctly reduced to writing, the court may forthwith issue a
warrant directed to the sheriff of the county where the person is,
committing him or her to jail, there to remain until he or she submits
to do the act which he or she was so required to do or is discharged
according to law. Such a warrant of commitment shall specify
particularly the cause of the commitment and, if the witness is
committed for refusing to answer a question, the question shall be
inserted in the warrant.
See NY CLS CPLR § 2308(a)
11. NY CLS CPLR § 2301 states in relevant part:
A subpoena duces tecum requires production of books, papers and
other things.
See NY CLS CPLR § 2301.
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12. NY CLS CPLR § 2302(a) states in relevant part:
Subpoenas may be issued without a court order by . . . an
attorney of record for a party to an action . . . in relation to which
proof may be taken or the attendance of a person as a witness may
be required . . . .
See NY CLS CPLR § 2302.
13. NY CLS CPLR § 2303(a) states:
A subpoena requiring attendance or a subpoena duces tecum
shall be served in the same manner as a summons, except that
where service of such a subpoena is made pursuant to subdivision
two or four of section three hundred eight of this chapter, the filing
of proof of service shall not be required and service shall be deemed
complete upon the later of the delivering or mailing of the subpoena,
if made pursuant to subdivision two of section three hundred eight
of this chapter, or upon the later of the affixing or mailing of the
subpoena, if made pursuant to subdivision four of section three
hundred eight of this chapter. Any person subpoenaed shall be paid
or tendered in advance authorized traveling expenses and one day’s
witness fee. A copy of any subpoena duces tecum served in a
pending civil judicial proceeding shall also be served, in the manner
set forth in rule twenty-one hundred three of this chapter, on each
party who has appeared in the civil judicial proceeding so that it is
received by such parties promptly after service on the witness and
before the production of books, papers or other things. (emphasis
added)
See NY CLS CPLR § 2303.
14. NY CLS CPLR § 2308 (b)(1) states
Unless otherwise provided, if 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 in
the supreme court to compel compliance. If the court finds that
the subpoena was authorized, it shall order compliance and may
impose costs not exceeding fifty dollars. A subpoenaed person shall
also be liable to the person on whose behalf the subpoena was issued
for a penalty not exceeding fifty dollars and damages sustained by
reason of the failure to comply. A court may issue a warrant
directing a sheriff to bring the witness before the person or body
requiring his appearance. If a person so subpoenaed attends or is
brought before such person or body, but refuses without reasonable
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cause to be examined, or to answer a legal and pertinent question, or
to produce a book, paper or other thing which he was directed to
produce by the subpoena, or to subscribe his deposition after it has
been correctly reduced to writing, the court, upon proof by affidavit,
may issue a warrant directed to the sheriff of the county where the
person is, committing him to jail, there to remain until he submits to
do the act which he was so required to do or is discharged according
to law. Such a warrant of commitment shall specify particularly the
cause of the commitment and, if the witness is committed for
refusing to answer a question, the question shall be inserted in the
warrant. (emphasis added)
See NY CLS CPLR § 2308.
15. “The failure to comply with a subpoena issued by an officer of the court shall be
punishable as a contempt of court (CPLR § 2308 [a]).” BT Americas, Inc v FOISI Broadcasting
Network, 2010 N.Y. Misc. LEXIS 2756, *11, 2010 NY Slip Op 31099(U), 9 (NY Co. 2010); “The
failure to comply with a subpoena issued by an officer of the court shall be punishable as a
contempt of court. CPLR § 2308 (a).” Hoffinger Stern & Ross, LLP v Oberman, 2010 N.Y. Misc.
LEXIS 2160, *2, 2010 NY Slip Op 31467(U), 3 (NY Co. 2010); Lynch v Johnson, 2016 N.Y.
Misc. LEXIS 4703, *4, 2016 NY Slip Op 32488(U), 4 (NY Co. 2016) (“The failure to comply
with a so-ordered subpoena may constitute contempt.”).
16. In Dias v. Consolidated Edison Co., 116 A.D.2d 453, 454, 496 N.Y.S.2d 686, 687
(1st Dept 1986), the First Department held that a subpoena duces tecum on Consolidated Edison
must be upheld as the Court found that “the records subpoenaed herein are relevant to the
discrimination claims so as to demonstrate the pattern and practice of decision making.” The Court
also stated that “[u]pon a party’s failure to comply with a nonjudicial subpoena, CPLR 2308 (b)
permits that a motion be made in Supreme Court to compel compliance.” Id. See also, Myrie v.
Shelley, 237 A.D.2d 337, 338, 655 N.Y.S.2d 66 (2d Dept 1997) (stating that the purpose of a
subpoena duces tecum is “to compel the production of specific documents that are relevant and
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material to facts at issue in a pending judicial proceeding”) (quoting, People v. Robinson, 87
A.D.2d 877, 449 N.Y.S.2d 321 (2d Dept 1982)); In the Matter of Terry D., 81 N.Y.2d 1042, 619
N.E.2d 389 (1993) (stating that the purpose of a subpoena deuces tecum “is to compel the
production of specific documents that are relevant and material to facts at issue in a pending
judicial proceeding.”) (quoting Constantine v. Leto, 157 A.D.2d 376, 557 N.Y.S.2d 611 (3d Dep’t
1982)); People v. Duran, 32 Misc.3d 225, 228, 921 N.Y.S.2d 826 (Kings Co. 2011) (stating that
“a subpoena enables the defendant to obtain evidence relevant to the issues that are material to the
trial itself, despite the fact that the entity (such as the NYPD in this case) that possesses the material
is not a party to a criminal action being prosecuted by the District Attorney.”).
17. The records/documents/materials/information requested from SMJ
CONTRACTOR LLC are of the utmost importance and are crucial to Petitioner’s prosecution of
this matter, as Petitioner was employed by, and working for, this entity at the time of his accident,
and this entity possesses various documents and information directly pertaining to the work being
performed at the time of Petitioner’s accident, as well as the claims asserted by Petitioner in this
action.
18. Petitioner’s rights would be significantly impeded, impaired, prejudiced and
defeated if SMJ CONTRACTOR LLC was permitted to ignore the Subpoena Duces Tecum and
not produce the records/documents/materials/information in question, which are related to
Petitioner’s work at the job site.
19. The instant application should be granted in all respects, in that the disclosure
requested herein is necessary for the purposes of prosecuting the instant action. As SMJ
CONTRACTOR LLC has failed to comply with Petitioner’s Subpoena Duces Tecum, Petitioner
has no other method, at this time, to obtain the relief requested.
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20. No prior application for the relief requested herein has been made.
WHEREFORE, it is respectfully requested that this Court grant the Order to Show Cause
in all respects, along with such other, further and different relief as this Court may deem just and
proper.
Dated: New York, New York
April 16, 2024
ZAREMBA BROWN PLLC
By: ___________________________
Richard M. Maniatis, Esq.
Attorneys for Plaintiffs
40 Wall Street, 52nd Floor
New York, New York 10005
(212) 380-6700
TO: SMJ CONTRACTOR LLC
83 Polk Street
Newark, NJ 07105
LONDON FISCHER, LLP
Attorneys for Defendants
23-30 BORDEN OWNER LLC
and MARCH ASSOCIATES
59 Maiden Lane, 39th Floor
New York, NY 10038
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Preview
FILED: NEW YORK COUNTY CLERK 04/16/2024 10:57 AM INDEX NO. 153549/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/16/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------------X Index No.: ANGELO GARCIA, AFFIRMATION IN Petitioner, SUPPORT - against - SMJ CONTRACTOR LLC, Respondent. ---------------------------------------------------------------------------X RICHARD M. MANIATIS, ESQ., an attorney duly admitted to practice law in the Courts of the State of New York, affirms the following under penalties of perjury: 1. I am a partner at the law firm ZAREMBA BROWN PLLC, attorneys for the Petitioner herein, and am fully familiar with the facts and circumstances of the within action. 2. This affirmation is respectfully submitted in support of Petitioner’s application seeking an Order, pursuant to CPLR §§ 2308(a), 2301, 2302, 2303 and 2308, holding SMJ CONTRACTOR LLC in contempt of Court for failing to completely comply with Petitioner’s Subpoena Duces Tecum, dated September 29, 2023, which was personally served on SMJ CONTRACTOR LLC on October 2, 2023. Alternatively, Petitioner seeks the issuance by this Honorable Court of an Order directing SMJ CONTRACTOR LLC to produce the records/documents/materials/information requested in the Subpoena Duces Tecum by a date certain, on threat of being held in contempt for failure to respond accordingly. 3. Petitioner’s Subpoena Duces Tecum requests production of several documents in SMJ CONTRACTOR LLC custody and control, including but not limited to, employment records, photographs and the contracts pertaining to the work performed at 23-30 Borden Avenue, Queens, NY on April 29, 2023. 1 of 7 FILED: NEW YORK COUNTY CLERK 04/16/2024 10:57 AM INDEX NO. 153549/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/16/2024 4. This action arises from a construction accident that occurred on April 29, 2023 when Petitioner was caused to sustain severe personal injuries while in the course of his employment at Defendants’ premises located 23-30 Borden Avenue, Queens, NY. At the time, Petitioner was employed by SMJ CONTRACTOR LLC, a subcontractor on the job. PROCEDURAL HISTORY 5. Petitioner commenced the instant action by the filing of a Summons and Complaint on or about September 28, 2023 a copy of which is attached hereto as Exhibit “A”. 6. Defendants, Defendants, 23-30 BORDEN OWNER LLC and MARCH ASSOCIATES CONSTRUCTION INC. served their answer on January 17, 2024. Defendants, BAYPORT CONSTRUCTION CORP., BAYPORT CONSTRUCTION & DEVELOPMENT CORP., and BAYPORT CONSTRUCTION OF NY, INC. served their answer on February 7, 2024. See Exhibit “B”. 7. As Petitioner had reason to believe that SMJ CONTRACTOR LLC is in possession of the operative construction contract between it and the general contractor for the very work Petitioner was performing at the time of the accident, Petitioner’s employment records and other pertinent documents as enumerated in the subpoena. Said documents are necessary to Petitioner’s prosecution of this matter. Petitioner served a Subpoena Duces Tecum on SMJ CONTRACTOR LLC on October 2, 2023. A copy of the Subpoena Duces Tecum, dated September 29, 2023, along with the Affidavit of Service in regard to said Subpoena, are collectively attached hereto as Exhibit “C”. 8. On February 26, 2024, plaintiff sent a good faith letter to SMJ CONTRACTOR LLC, via FedEx Overnight Mail, at the same address at which said entity was served with the Subpoena Duces Tecum, in an effort to secure compliance with the subpoena without court 2 of 7 FILED: NEW YORK COUNTY CLERK 04/16/2024 10:57 AM INDEX NO. 153549/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/16/2024 intervention. To date, despite good faith efforts, SMJ CONTRACTOR LLC has not complied with the Subpoena Duces Tecum or responded to the aforementioned good faith correspondence. A copy of the good letter is attached as Exhibit “D”. 9. To date, SMJ CONTRACTOR LLC has not responded to Petitioner’s Subpoena dated September 29, 2023. Despite good faith efforts, it appears that SMJ CONTRACTOR LLC has no intentions of complying with Petitioner’s Subpoena Duces Tecum. ARGUMENT 10. NY CLS CPLR § 2308(a) states: Failure to comply with a subpoena issued by a judge, clerk or officer of the court shall be punishable as a contempt of court. If the witness is a party the court may also strike his or her pleadings. A subpoenaed person shall also be liable to the person on whose behalf the subpoena was issued for a penalty not exceeding one hundred fifty dollars and damages sustained by reason of the failure to comply. A court may issue a warrant directing a sheriff to bring the witness into court. If a person so subpoenaed attends or is brought into court, but refuses without reasonable cause to be examined, or to answer a legal and pertinent question, or to produce a book, paper or other thing which he or she was directed to produce by the subpoena, or to subscribe his or her deposition after it has been correctly reduced to writing, the court may forthwith issue a warrant directed to the sheriff of the county where the person is, committing him or her to jail, there to remain until he or she submits to do the act which he or she was so required to do or is discharged according to law. Such a warrant of commitment shall specify particularly the cause of the commitment and, if the witness is committed for refusing to answer a question, the question shall be inserted in the warrant. See NY CLS CPLR § 2308(a) 11. NY CLS CPLR § 2301 states in relevant part: A subpoena duces tecum requires production of books, papers and other things. See NY CLS CPLR § 2301. 3 of 7 FILED: NEW YORK COUNTY CLERK 04/16/2024 10:57 AM INDEX NO. 153549/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/16/2024 12. NY CLS CPLR § 2302(a) states in relevant part: Subpoenas may be issued without a court order by . . . an attorney of record for a party to an action . . . in relation to which proof may be taken or the attendance of a person as a witness may be required . . . . See NY CLS CPLR § 2302. 13. NY CLS CPLR § 2303(a) states: A subpoena requiring attendance or a subpoena duces tecum shall be served in the same manner as a summons, except that where service of such a subpoena is made pursuant to subdivision two or four of section three hundred eight of this chapter, the filing of proof of service shall not be required and service shall be deemed complete upon the later of the delivering or mailing of the subpoena, if made pursuant to subdivision two of section three hundred eight of this chapter, or upon the later of the affixing or mailing of the subpoena, if made pursuant to subdivision four of section three hundred eight of this chapter. Any person subpoenaed shall be paid or tendered in advance authorized traveling expenses and one day’s witness fee. A copy of any subpoena duces tecum served in a pending civil judicial proceeding shall also be served, in the manner set forth in rule twenty-one hundred three of this chapter, on each party who has appeared in the civil judicial proceeding so that it is received by such parties promptly after service on the witness and before the production of books, papers or other things. (emphasis added) See NY CLS CPLR § 2303. 14. NY CLS CPLR § 2308 (b)(1) states Unless otherwise provided, if 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 in the supreme court to compel compliance. If the court finds that the subpoena was authorized, it shall order compliance and may impose costs not exceeding fifty dollars. A subpoenaed person shall also be liable to the person on whose behalf the subpoena was issued for a penalty not exceeding fifty dollars and damages sustained by reason of the failure to comply. A court may issue a warrant directing a sheriff to bring the witness before the person or body requiring his appearance. If a person so subpoenaed attends or is brought before such person or body, but refuses without reasonable 4 of 7 FILED: NEW YORK COUNTY CLERK 04/16/2024 10:57 AM INDEX NO. 153549/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/16/2024 cause to be examined, or to answer a legal and pertinent question, or to produce a book, paper or other thing which he was directed to produce by the subpoena, or to subscribe his deposition after it has been correctly reduced to writing, the court, upon proof by affidavit, may issue a warrant directed to the sheriff of the county where the person is, committing him to jail, there to remain until he submits to do the act which he was so required to do or is discharged according to law. Such a warrant of commitment shall specify particularly the cause of the commitment and, if the witness is committed for refusing to answer a question, the question shall be inserted in the warrant. (emphasis added) See NY CLS CPLR § 2308. 15. “The failure to comply with a subpoena issued by an officer of the court shall be punishable as a contempt of court (CPLR § 2308 [a]).” BT Americas, Inc v FOISI Broadcasting Network, 2010 N.Y. Misc. LEXIS 2756, *11, 2010 NY Slip Op 31099(U), 9 (NY Co. 2010); “The failure to comply with a subpoena issued by an officer of the court shall be punishable as a contempt of court. CPLR § 2308 (a).” Hoffinger Stern & Ross, LLP v Oberman, 2010 N.Y. Misc. LEXIS 2160, *2, 2010 NY Slip Op 31467(U), 3 (NY Co. 2010); Lynch v Johnson, 2016 N.Y. Misc. LEXIS 4703, *4, 2016 NY Slip Op 32488(U), 4 (NY Co. 2016) (“The failure to comply with a so-ordered subpoena may constitute contempt.”). 16. In Dias v. Consolidated Edison Co., 116 A.D.2d 453, 454, 496 N.Y.S.2d 686, 687 (1st Dept 1986), the First Department held that a subpoena duces tecum on Consolidated Edison must be upheld as the Court found that “the records subpoenaed herein are relevant to the discrimination claims so as to demonstrate the pattern and practice of decision making.” The Court also stated that “[u]pon a party’s failure to comply with a nonjudicial subpoena, CPLR 2308 (b) permits that a motion be made in Supreme Court to compel compliance.” Id. See also, Myrie v. Shelley, 237 A.D.2d 337, 338, 655 N.Y.S.2d 66 (2d Dept 1997) (stating that the purpose of a subpoena duces tecum is “to compel the production of specific documents that are relevant and 5 of 7 FILED: NEW YORK COUNTY CLERK 04/16/2024 10:57 AM INDEX NO. 153549/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/16/2024 material to facts at issue in a pending judicial proceeding”) (quoting, People v. Robinson, 87 A.D.2d 877, 449 N.Y.S.2d 321 (2d Dept 1982)); In the Matter of Terry D., 81 N.Y.2d 1042, 619 N.E.2d 389 (1993) (stating that the purpose of a subpoena deuces tecum “is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding.”) (quoting Constantine v. Leto, 157 A.D.2d 376, 557 N.Y.S.2d 611 (3d Dep’t 1982)); People v. Duran, 32 Misc.3d 225, 228, 921 N.Y.S.2d 826 (Kings Co. 2011) (stating that “a subpoena enables the defendant to obtain evidence relevant to the issues that are material to the trial itself, despite the fact that the entity (such as the NYPD in this case) that possesses the material is not a party to a criminal action being prosecuted by the District Attorney.”). 17. The records/documents/materials/information requested from SMJ CONTRACTOR LLC are of the utmost importance and are crucial to Petitioner’s prosecution of this matter, as Petitioner was employed by, and working for, this entity at the time of his accident, and this entity possesses various documents and information directly pertaining to the work being performed at the time of Petitioner’s accident, as well as the claims asserted by Petitioner in this action. 18. Petitioner’s rights would be significantly impeded, impaired, prejudiced and defeated if SMJ CONTRACTOR LLC was permitted to ignore the Subpoena Duces Tecum and not produce the records/documents/materials/information in question, which are related to Petitioner’s work at the job site. 19. The instant application should be granted in all respects, in that the disclosure requested herein is necessary for the purposes of prosecuting the instant action. As SMJ CONTRACTOR LLC has failed to comply with Petitioner’s Subpoena Duces Tecum, Petitioner has no other method, at this time, to obtain the relief requested. 6 of 7 FILED: NEW YORK COUNTY CLERK 04/16/2024 10:57 AM INDEX NO. 153549/2024 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/16/2024 20. No prior application for the relief requested herein has been made. WHEREFORE, it is respectfully requested that this Court grant the Order to Show Cause in all respects, along with such other, further and different relief as this Court may deem just and proper. Dated: New York, New York April 16, 2024 ZAREMBA BROWN PLLC By: ___________________________ Richard M. Maniatis, Esq. Attorneys for Plaintiffs 40 Wall Street, 52nd Floor New York, New York 10005 (212) 380-6700 TO: SMJ CONTRACTOR LLC 83 Polk Street Newark, NJ 07105 LONDON FISCHER, LLP Attorneys for Defendants 23-30 BORDEN OWNER LLC and MARCH ASSOCIATES 59 Maiden Lane, 39th Floor New York, NY 10038 7 of 7