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YORK OUN Kk ‘00 Dv INDEX NO. 652746/2015
NYSCEF BOC. NO. 19 RECEIVED NYSCEF: 02/12/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
meee nen nen n enn nnn ene nena smectite:
LUXURY MORTGAGE CORP., Index No, 652746/2015
Plaintiff,
- against ~ AFFIRMATION IN SUPPORT
OF MOTION FOR ORDER OF
STEPHEN J. BENINATI, CONTEMPT AND COMPLIANCE
Defendant.
weet en een ene nen nen ene en een n ennai
PAMELA L. KLEINBERG, an attorney duly licensed to practice law in the courts of
the State of New York, does hereby affirm, under penalties of perjury, as follows:
1 Tam an attorney associated with the law firm Wilk Auslander LLP, attorneys for
Luxury Mortgage Corp., plaintiff in this action. In such capacity, I have personal knowledge of
the facts and circumstances set forth herein. I submit this affidavit in support of plaintiff's
motion for an order, pursuant to CPLR § 5251 and New York State Judiciary Law §§
753(A\(3):
(a) adjudging and declaring defendant-judgment debtor Stephen J. Beninati
(“Defendant”), and his wife, Sondra (Webb) Beninati (“Sondra Beninati”), a non-
party, in contempt of court for willfully disobeying the respective Subpoenas Ad
Testificandum and Duces Tecum, dated December 21, 2015 (the “Subpoenas”)
served on them, and punishing Defendant and Sondra Beninati for such contempt
by awarding plaintiff its costs, expenses, and reasonable attorneys’ fees from
Stephen Beninati and Sondra Beninati, in the amount of $2,948.50, and directing
them to pay such amount to Wilk Auslander LLP, as counsel for plaintiff, within
ten (10) days of entry of an order of this Court granting this motion;
00879062.
() pursuant to Judiciary Law § 791, imposing a statutory fine against Stephen Beninati and
Sondra Beninati, each in the amount of $1,000.00, and issuing a warrant, under the seal
of the Court, directed to the Sheriff of New York County, and commanding him to collect
from each of Stephen Beninati and Sondra Beninati, such fine in the amount of $1,000, to
be paid over to the treasurer of New York County;
(c) directing Stephen Beninati and Sondra Beninati to appear for a deposition before Wilk
Auslander LLP, at 10:00 a.m., at its offices located at 1515 Broadway, 43rd Floor, New
York, New York 10036, within ten (10) days of entry of an order of this Court granting
this motion, to testify and produce documents concerning the assets and property of
Defendant that may be subject to the judgment entered in this action on December 14,
2015, in favor of plaintiff and against Defendant in the amount of $270,942.03 (the
“Judgment”). Copies of the Subpoenas, with proof of service, are attached hereto as
Exhibits “A” and “B.”
The Judgment
2. On December 14, 2015, plaintiff obtained the Judgment against Defendant in this
action, A copy of the Judgment is annexed hereto as Exhibit “C.”
3 No part of the Judgment has been paid.
The Subpoenas Ad Testificandum and Duces Tecum
4 In order to aid in the enforcement of the Judgment, and pursuant to CPLR 5224,
on December 22, 23, and 24, 2015, plaintiff, by its process server, attempted to serve the
Subpoenas on Defendant and Sondra Beninati at their usual place of abode, at 303 East 83rd
Street, Apt. 30A, New York, New York 10028 ~ a high-rise luxury doorman building. See
Affidavit of Service, Ex. A. The doorman on duty at their abode confirmed that Defendant and
Sondra Beninati resides at that address.
00879062.1
5 On the first two attempts, on December 22 and 23, 2015, the doorman on duty
confirmed that Defendant and Sondra Beninati resides at that address, and rang the buzzer
upstairs to their apartment, No. 30A. After receiving no response, the doorman informed the
process server that that they were not home.
6 On December 24, 2015, on the process server’s third attempt to serve Defendant
and Sondra Beninati, the doorman on duty refused to ring the buzzer upstairs to Defendant’s
and Sondra Beninati’s apartment, and denied the process server any access to the apartment.
The process server served the Subpoenas, respectively, on Defendant and Sondra Beninati by
delivering it to the doorman, a person of suitable age and discretion, at their usual place of
abode. See proofs of service, Exhibits A and B. A witness fee check for Sondra Beninati, in the
amount of $25.00, was also served at that time.
7
On December 24, 2015, the process server also mailed, by first-class mail, the
respective Subpoenas to Defendant and Sondra Beninati in a postage-paid envelope marked
“Personal and Confidential” and not indicating on the outside thereof, by return address or
otherwise, that the communication is from an attorney or concerns an action against the person
to be served. See Exhibits A and B.
8 The Subpoena served on Sondra Beninati directed her: (4) no later than January
11, 2016, to produce documents in response to document requests attached to the Subpoena as
Schedule A; and (ii) to appear and testify at a deposition at plaintiff's offices on January 26,
2016, at 10:00 a.m., and at any recessed or adjourned date thereof,
9 The Subpoena served on Defendant directed him: (i) no later than January 11,
2016, to produce documents in response to document requests attached to the Subpoena as
Schedule A; and (ii) to appear and testify at a deposition at plaintiff's offices on January 27,
2016, at 10:00 a.m., and at any recessed or adjourned date thereof.
00879062.1
10 Each Subpoena contains the following notices:
PLEASE TAKE NOTICE that false swearing or failure to
comply with this Subpoena Ad Testificandum is punishable as
a contempt of Court and shall make you liable to the person on
whose behalf this Subpoena Ad Testificandum and Duces
Tecum was issued for a penalty not to exceed One Hundred
Fifty Dollars ($150.00) and all damages sustained by reason of
your failure to comply; and
TAKE NOTICE THAT FALSE SWEARING OR FAILURE
TO COMPLY WITH THIS SUBPOENA IS PUNISHABLE
AS A CONTEMPT OF COURT.
See Exhibits A and B.
il. By email dated January 22, 2016, before Defendant’s scheduled deposition, I
contacted Defendant’s attorney, Chryssa Yaccarino, Esq., to inquire whether Defendant will be
complying with the Subpoena and appearing for his deposition on January 27, 2016. By email
sent the same day, Ms. Yaccarino advised me that Defendant asserts that he was not served with
the Subpoena. In response, I advised Ms. Yaccarino that the process server properly served the
Subpoena on Defendant, and provided her with a copy of the process server’s proof of service
for the Subpoena. However, Ms. Yaccarino refused to acknowledge that Defendant was
properly served. See copies of emails, dated January 22, 2016, exchanged between Pamela L.
Kleinberg to Chryssa Yaccarino, attached hereto as Exhibit “D.”
12. At that time, Ms. Yaccarino also advised me that she did not represent Sondra
Beninati.
13. On January 25, 2016, I tried to contact Sondra Beninati to confirm that she would
be appearing for her deposition by calling a phone number associated with her usual place of
abode, but no one was home and I was not able to reach her.
14. Neither Defendant nor Sondra Beninati ever contacted me to arrange any
adjournments of their depositions.
00879062.1
Defendant’s and Sondra Beninati’s Contempt of Court
15. On December 26, 2016, Sondra Beninati failed to appear for her deposition, in
default of the Subpoena served on her. She also failed to produce any documents in response to
the Subpoena served on her. Her default of the Subpoena was noted on the record in the court
reporter’s transcript for the scheduled deposition. See certified copy of deposition transcript
annexed hereto as Exhibit “E.”
16. On December 27, 2016, Defendant failed to appear for his deposition, in default
of the Subpoena served on him. He also failed to produce any documents in response to the
Subpoena served on him. His default was noted on the record in the court reporter’s transcript
for the scheduled deposition. See certified copy of deposition transcript annexed hereto as
Exhibit “F.”
17. Under the express terms of CPLR § 2308, “[fJailure to comply with a subpoena
issued by a judge, clerk or officer of the court shall be punishable as a contempt of court,”
Moreover, “[i|ntent or willfulness is not required to hold a party in contempt for disobeying a
court order or subpoena.” Yalkowsky v. Yalkowsky, 93 A.D.2d 834, 835, 461 N.Y.S.2d 54, 55
(2d Dep’t 1983). Indeed, “[i]t is not necessary that such disobedience be deliberate; rather the
mere act of disobedience, regardless of its motive, is sufficient to sustain a finding of civil
Id.
contempt if such disobedience defeats, impairs, impedes or prejudices the rights of a party.”
(internal citations omitted).
18, In light of the fact that Defendant is represented by legal counsel, Defendant has
no reasonable excuse for disobeying his Subpoena by failing to produce documents and failing
to appear for his deposition on January 27, 2016. Had Defendant believed the Subpoena served
not
on him to be improper, his only option would have been to file a motion to quash it, He has
Dow
done so. His failure is grounds for holding him in contempt. See, e.g., Reuters Limited v.
00879062.1
Jones Telerate, Inc., 662 N.Y.S.2d 450, 231 A.D.2d 337, 341 (1st Dep’t 1997) (“In the case of
judicial subpoenas, including those issued by an attorney of record in a matter pending before a
court, a person who fails to comply, without making a motion to quash, runs the risk of being
held in contempt based directly on that failure.”) (citing 4 Weinstein-Korn Miller, N.Y. Civ.
Practice § 2308.01a; Judiciary Law §§ 750(A)(3), 753); Bankers Trust Co. v. Braten, 598
N.Y.S.2d 498, 498, 194 A.D.2d 378, 379 (2d Dep’t 1993) (affirming trial court’s order holding
a third-party in contempt for failure to appear at a properly noticed deposition and stating that it
was “noteworthy that appellants did not move to quash the subpoenas ... ”).
19. This Court has the power to punish Defendant in accordance with N.Y. Judiciary
Law § 753, which provides that “[a] court of record has the power to punish, by fine and
imprisonment, or either, a neglect or violation of duty, or other misconduct [such as refusal to
obey a subpoena] by which a right or remedy of a party to a civil action or special proceeding,
pending in the court may be defeated, impaired, impeded, or prejudiced... .” N.Y. Judiciary
Law § 753(A)(5).
20. Defendant's utter disregard of the Subpoena and deliberate failure to produce
documents and appear for his deposition constitutes his disobedience of the Subpoena served on
him, for which he should be held in contempt of court and punished. His disobedience was
clearly calculated to, and did, impair, impede, and prejudice the rights and remedies of plaintiff,
as judgment creditor, to obtain information about his assets and property in order to collect its
Judgment. His misconduct fits squarely into that described in § 753(A)(5), because, although
represented by counsel, who was provided with the Subpoena and proof of service, Defendant
refused to acknowledge that the Subpoena was valid. Such conduct by Defendant constitutes
his contempt of court for which he should be held in contempt of court and punished.
60879062.1
21. Sondra Beninati’s refusal to produce documents and to appear for her deposition
on January 26, 2016, in disobedience of the Subpoena served on her, also constitutes her
contempt of court. The Subpoena contained a copy of the Judgment, and put her on notice that
her production of documents and testimony at a deposition was intended to enable plaintiff to
obtain information about her husband’s assets and property in order to collect its Judgment. As
Defendant’s wife, and because she maintains an abode and jointly owns property with him, she
cannot deny her knowledge of information concerning Defendant’s assets and property. In
complicity with her husband, however, she simply chose to ignore the Subpoena and her
obligations thereunder. Therefore, she also should be held in contempt of court and punished.
22. Asa result of Defendant’s and Sondra Beninati’s contempt of court, plaintiff has
incurred costs and expenses attributable to the scheduled depositions, including the costs for the
court reporter and the transcripts of the deposition records of the defaults, which are in the
amount of $448.50, and reasonable attormeys’ fees incurred in connection with this motion
seeking to compel their compliance with the Subpoenas, in the approximate amount of
$2,500.00, for a total amount of $2,948.50. See court reporter invoices, attached hereto as
Exhibit “G.”
23. Based on the foregoing, plaintiff respectfully requests an order: (a) declaring
Defendant, Stephen Beninati and Sondra Beninati in contempt of court, and punishing each
them by awarding plaintiff its costs, expenses, and reasonable attorneys’ fees from Stephen.
Beninati and Sondra Beninati in the amount of $2,948.50, and directing them to pay such
amount to Wilk Auslander LLP, as counsel for plaintiff, within ten (10) days of entry of an
order of this Court granting this motion; (b) imposing a statutory fine against Stephen Beninati
and Sondra Beninati, each in the amount of $1,000.00, and issuing a warrant, under the seal of
the Court, directed to the Sheriff of New York County, and commanding him to collect from
60879062.1
each of Stephen Beninati and Sondra Beninati, such fine in the amount of $1,000, to be paid
over to the treasurer of New York County; and (c) directing Stephen Beninati and Sondra
Beninati to appear for a deposition before Wilk Auslander LLP, at 10:00 a.m., at its offices
located at 1515 Broadway, 43rd Floor, New York, New York 10036, within ten (10) days of
entry of an order of this Court granting this motion, to testify and produce documents
concerning the assets and property of Defendant that may be subject to the Judgment.
24, No prior application has been made by plaintiff for the relief requested herein.
25, Thereby certify that, to the best of my knowledge, information and belief, formed
after an inquiry reasonable under the circumstances, the within affirmation, and statements
therein, are not frivolous as defined in section (c) of Section 130-1.1 of the Rules of the Chief
Administrator.
WHEREFORE, plaintiff respectfully requests that its motion be granted in its entirety.
Dated: New York, New York
February 12, 2016
bie
PAMELA L. KL RG
00879062.1
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YORK OUN Kk ‘00 Dv INDEX NO. 652746/2015 NYSCEF BOC. NO. 19 RECEIVED NYSCEF: 02/12/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK meee nen nen n enn nnn ene nena smectite: LUXURY MORTGAGE CORP., Index No, 652746/2015 Plaintiff, - against ~ AFFIRMATION IN SUPPORT OF MOTION FOR ORDER OF STEPHEN J. BENINATI, CONTEMPT AND COMPLIANCE Defendant. weet en een ene nen nen ene en een n ennai PAMELA L. KLEINBERG, an attorney duly licensed to practice law in the courts of the State of New York, does hereby affirm, under penalties of perjury, as follows: 1 Tam an attorney associated with the law firm Wilk Auslander LLP, attorneys for Luxury Mortgage Corp., plaintiff in this action. In such capacity, I have personal knowledge of the facts and circumstances set forth herein. I submit this affidavit in support of plaintiff's motion for an order, pursuant to CPLR § 5251 and New York State Judiciary Law §§ 753(A\(3): (a) adjudging and declaring defendant-judgment debtor Stephen J. Beninati (“Defendant”), and his wife, Sondra (Webb) Beninati (“Sondra Beninati”), a non- party, in contempt of court for willfully disobeying the respective Subpoenas Ad Testificandum and Duces Tecum, dated December 21, 2015 (the “Subpoenas”) served on them, and punishing Defendant and Sondra Beninati for such contempt by awarding plaintiff its costs, expenses, and reasonable attorneys’ fees from Stephen Beninati and Sondra Beninati, in the amount of $2,948.50, and directing them to pay such amount to Wilk Auslander LLP, as counsel for plaintiff, within ten (10) days of entry of an order of this Court granting this motion; 00879062. () pursuant to Judiciary Law § 791, imposing a statutory fine against Stephen Beninati and Sondra Beninati, each in the amount of $1,000.00, and issuing a warrant, under the seal of the Court, directed to the Sheriff of New York County, and commanding him to collect from each of Stephen Beninati and Sondra Beninati, such fine in the amount of $1,000, to be paid over to the treasurer of New York County; (c) directing Stephen Beninati and Sondra Beninati to appear for a deposition before Wilk Auslander LLP, at 10:00 a.m., at its offices located at 1515 Broadway, 43rd Floor, New York, New York 10036, within ten (10) days of entry of an order of this Court granting this motion, to testify and produce documents concerning the assets and property of Defendant that may be subject to the judgment entered in this action on December 14, 2015, in favor of plaintiff and against Defendant in the amount of $270,942.03 (the “Judgment”). Copies of the Subpoenas, with proof of service, are attached hereto as Exhibits “A” and “B.” The Judgment 2. On December 14, 2015, plaintiff obtained the Judgment against Defendant in this action, A copy of the Judgment is annexed hereto as Exhibit “C.” 3 No part of the Judgment has been paid. The Subpoenas Ad Testificandum and Duces Tecum 4 In order to aid in the enforcement of the Judgment, and pursuant to CPLR 5224, on December 22, 23, and 24, 2015, plaintiff, by its process server, attempted to serve the Subpoenas on Defendant and Sondra Beninati at their usual place of abode, at 303 East 83rd Street, Apt. 30A, New York, New York 10028 ~ a high-rise luxury doorman building. See Affidavit of Service, Ex. A. The doorman on duty at their abode confirmed that Defendant and Sondra Beninati resides at that address. 00879062.1 5 On the first two attempts, on December 22 and 23, 2015, the doorman on duty confirmed that Defendant and Sondra Beninati resides at that address, and rang the buzzer upstairs to their apartment, No. 30A. After receiving no response, the doorman informed the process server that that they were not home. 6 On December 24, 2015, on the process server’s third attempt to serve Defendant and Sondra Beninati, the doorman on duty refused to ring the buzzer upstairs to Defendant’s and Sondra Beninati’s apartment, and denied the process server any access to the apartment. The process server served the Subpoenas, respectively, on Defendant and Sondra Beninati by delivering it to the doorman, a person of suitable age and discretion, at their usual place of abode. See proofs of service, Exhibits A and B. A witness fee check for Sondra Beninati, in the amount of $25.00, was also served at that time. 7 On December 24, 2015, the process server also mailed, by first-class mail, the respective Subpoenas to Defendant and Sondra Beninati in a postage-paid envelope marked “Personal and Confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served. See Exhibits A and B. 8 The Subpoena served on Sondra Beninati directed her: (4) no later than January 11, 2016, to produce documents in response to document requests attached to the Subpoena as Schedule A; and (ii) to appear and testify at a deposition at plaintiff's offices on January 26, 2016, at 10:00 a.m., and at any recessed or adjourned date thereof, 9 The Subpoena served on Defendant directed him: (i) no later than January 11, 2016, to produce documents in response to document requests attached to the Subpoena as Schedule A; and (ii) to appear and testify at a deposition at plaintiff's offices on January 27, 2016, at 10:00 a.m., and at any recessed or adjourned date thereof. 00879062.1 10 Each Subpoena contains the following notices: PLEASE TAKE NOTICE that false swearing or failure to comply with this Subpoena Ad Testificandum is punishable as a contempt of Court and shall make you liable to the person on whose behalf this Subpoena Ad Testificandum and Duces Tecum was issued for a penalty not to exceed One Hundred Fifty Dollars ($150.00) and all damages sustained by reason of your failure to comply; and TAKE NOTICE THAT FALSE SWEARING OR FAILURE TO COMPLY WITH THIS SUBPOENA IS PUNISHABLE AS A CONTEMPT OF COURT. See Exhibits A and B. il. By email dated January 22, 2016, before Defendant’s scheduled deposition, I contacted Defendant’s attorney, Chryssa Yaccarino, Esq., to inquire whether Defendant will be complying with the Subpoena and appearing for his deposition on January 27, 2016. By email sent the same day, Ms. Yaccarino advised me that Defendant asserts that he was not served with the Subpoena. In response, I advised Ms. Yaccarino that the process server properly served the Subpoena on Defendant, and provided her with a copy of the process server’s proof of service for the Subpoena. However, Ms. Yaccarino refused to acknowledge that Defendant was properly served. See copies of emails, dated January 22, 2016, exchanged between Pamela L. Kleinberg to Chryssa Yaccarino, attached hereto as Exhibit “D.” 12. At that time, Ms. Yaccarino also advised me that she did not represent Sondra Beninati. 13. On January 25, 2016, I tried to contact Sondra Beninati to confirm that she would be appearing for her deposition by calling a phone number associated with her usual place of abode, but no one was home and I was not able to reach her. 14. Neither Defendant nor Sondra Beninati ever contacted me to arrange any adjournments of their depositions. 00879062.1 Defendant’s and Sondra Beninati’s Contempt of Court 15. On December 26, 2016, Sondra Beninati failed to appear for her deposition, in default of the Subpoena served on her. She also failed to produce any documents in response to the Subpoena served on her. Her default of the Subpoena was noted on the record in the court reporter’s transcript for the scheduled deposition. See certified copy of deposition transcript annexed hereto as Exhibit “E.” 16. On December 27, 2016, Defendant failed to appear for his deposition, in default of the Subpoena served on him. He also failed to produce any documents in response to the Subpoena served on him. His default was noted on the record in the court reporter’s transcript for the scheduled deposition. See certified copy of deposition transcript annexed hereto as Exhibit “F.” 17. Under the express terms of CPLR § 2308, “[fJailure to comply with a subpoena issued by a judge, clerk or officer of the court shall be punishable as a contempt of court,” Moreover, “[i|ntent or willfulness is not required to hold a party in contempt for disobeying a court order or subpoena.” Yalkowsky v. Yalkowsky, 93 A.D.2d 834, 835, 461 N.Y.S.2d 54, 55 (2d Dep’t 1983). Indeed, “[i]t is not necessary that such disobedience be deliberate; rather the mere act of disobedience, regardless of its motive, is sufficient to sustain a finding of civil Id. contempt if such disobedience defeats, impairs, impedes or prejudices the rights of a party.” (internal citations omitted). 18, In light of the fact that Defendant is represented by legal counsel, Defendant has no reasonable excuse for disobeying his Subpoena by failing to produce documents and failing to appear for his deposition on January 27, 2016. Had Defendant believed the Subpoena served not on him to be improper, his only option would have been to file a motion to quash it, He has Dow done so. His failure is grounds for holding him in contempt. See, e.g., Reuters Limited v. 00879062.1 Jones Telerate, Inc., 662 N.Y.S.2d 450, 231 A.D.2d 337, 341 (1st Dep’t 1997) (“In the case of judicial subpoenas, including those issued by an attorney of record in a matter pending before a court, a person who fails to comply, without making a motion to quash, runs the risk of being held in contempt based directly on that failure.”) (citing 4 Weinstein-Korn Miller, N.Y. Civ. Practice § 2308.01a; Judiciary Law §§ 750(A)(3), 753); Bankers Trust Co. v. Braten, 598 N.Y.S.2d 498, 498, 194 A.D.2d 378, 379 (2d Dep’t 1993) (affirming trial court’s order holding a third-party in contempt for failure to appear at a properly noticed deposition and stating that it was “noteworthy that appellants did not move to quash the subpoenas ... ”). 19. This Court has the power to punish Defendant in accordance with N.Y. Judiciary Law § 753, which provides that “[a] court of record has the power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct [such as refusal to obey a subpoena] by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced... .” N.Y. Judiciary Law § 753(A)(5). 20. Defendant's utter disregard of the Subpoena and deliberate failure to produce documents and appear for his deposition constitutes his disobedience of the Subpoena served on him, for which he should be held in contempt of court and punished. His disobedience was clearly calculated to, and did, impair, impede, and prejudice the rights and remedies of plaintiff, as judgment creditor, to obtain information about his assets and property in order to collect its Judgment. His misconduct fits squarely into that described in § 753(A)(5), because, although represented by counsel, who was provided with the Subpoena and proof of service, Defendant refused to acknowledge that the Subpoena was valid. Such conduct by Defendant constitutes his contempt of court for which he should be held in contempt of court and punished. 60879062.1 21. Sondra Beninati’s refusal to produce documents and to appear for her deposition on January 26, 2016, in disobedience of the Subpoena served on her, also constitutes her contempt of court. The Subpoena contained a copy of the Judgment, and put her on notice that her production of documents and testimony at a deposition was intended to enable plaintiff to obtain information about her husband’s assets and property in order to collect its Judgment. As Defendant’s wife, and because she maintains an abode and jointly owns property with him, she cannot deny her knowledge of information concerning Defendant’s assets and property. In complicity with her husband, however, she simply chose to ignore the Subpoena and her obligations thereunder. Therefore, she also should be held in contempt of court and punished. 22. Asa result of Defendant’s and Sondra Beninati’s contempt of court, plaintiff has incurred costs and expenses attributable to the scheduled depositions, including the costs for the court reporter and the transcripts of the deposition records of the defaults, which are in the amount of $448.50, and reasonable attormeys’ fees incurred in connection with this motion seeking to compel their compliance with the Subpoenas, in the approximate amount of $2,500.00, for a total amount of $2,948.50. See court reporter invoices, attached hereto as Exhibit “G.” 23. Based on the foregoing, plaintiff respectfully requests an order: (a) declaring Defendant, Stephen Beninati and Sondra Beninati in contempt of court, and punishing each them by awarding plaintiff its costs, expenses, and reasonable attorneys’ fees from Stephen. Beninati and Sondra Beninati in the amount of $2,948.50, and directing them to pay such amount to Wilk Auslander LLP, as counsel for plaintiff, within ten (10) days of entry of an order of this Court granting this motion; (b) imposing a statutory fine against Stephen Beninati and Sondra Beninati, each in the amount of $1,000.00, and issuing a warrant, under the seal of the Court, directed to the Sheriff of New York County, and commanding him to collect from 60879062.1 each of Stephen Beninati and Sondra Beninati, such fine in the amount of $1,000, to be paid over to the treasurer of New York County; and (c) directing Stephen Beninati and Sondra Beninati to appear for a deposition before Wilk Auslander LLP, at 10:00 a.m., at its offices located at 1515 Broadway, 43rd Floor, New York, New York 10036, within ten (10) days of entry of an order of this Court granting this motion, to testify and produce documents concerning the assets and property of Defendant that may be subject to the Judgment. 24, No prior application has been made by plaintiff for the relief requested herein. 25, Thereby certify that, to the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the within affirmation, and statements therein, are not frivolous as defined in section (c) of Section 130-1.1 of the Rules of the Chief Administrator. WHEREFORE, plaintiff respectfully requests that its motion be granted in its entirety. Dated: New York, New York February 12, 2016 bie PAMELA L. KL RG 00879062.1