Quantum Heating Services Inc. v. Austern

Appeal by defendants Leon Austern and Jonathan Austern from an order of the Supreme Court, Westchester County (Wood, J.), dated June 16,1983, which granted an application to adjudge them in civil contempt, fined each of them $250 plus $10 costs with leave to purge by installment payments of $26 per week, and authorized, in the event of a default, a further application for a warrant of commitment. $ Order reversed, on the law, with costs to plaintiff, and matter remitted to the Supreme Court, Westchester County, for a hearing and new determination in accordance herewith. 11 Plaintiff obtained a judgment against the defendants in the Supreme Court, Westchester County, which remains unsatisfied. Accordingly, plaintiff served informational subpoenas on the appellants pursuant to CPLR 5224 by certified mail, return receipt requested. Appellants’ answers were patently evasive consisting of a series of “NA” or “unknown” responses. For example, an “unknown” response was given for amount of income received for the past two years and “NA” (not applicable) responses were tendered to the questions of whether the appellants had “sold, conveyed or assigned” any real property within the past two years and “[hjow do you pay for your living expenses?” 11 Thereupon, plaintiff sought to punish appellants for contempt, serving the motion papers upon the individual defendants as well as their attorney by ordinary mail. The addresses utilized were the same as those to which the informational subpoenas were sent. Each of the appellants submitted answering papers in which he claimed that he had “not been served with any papers that concern this motion”, that personal service was necessary, that his answers were accurate and that plaintiff was harassing him. $ Special Term adjudicated appellants in contempt, and, as to each appellant, imposed a $250 fine and assessed $10 costs, with leave to purge by installment payments. We reverse and remit for further proceedings. H At the outset, we note that there is no merit in appellants’ contention that personal service of the motion papers was required. Since they were parties in the underlying action service by mail was sufficient (New York Higher Educ. Assistance Corp. v Cooper, 65 AD2d 906 ; cf. Long Is. Trust Co. v Rosenberg, 82 AD2d 591 , 598; Continental Bank v Moscatiello, 115 Mise 2d 617). H Nor do appellants’ assertions concerning a lack of receipt of the papers warrant a hearing. An affidavit of service, though omitted from the record certified by appellants’ attorney, is now