Arko MB LLC v. O'Neel — 95 A.D.3d 742

Majority

p. 742

Arko MB LLC, Appellant, v Robert W. O’Neel, III, et al., Respondents.

[946 NYS2d 54] —

Order, Supreme Court, New York County (Debra A. James, J.), entered September 20, 2011, which denied plaintiff judgment creditor’s motion pursuant to CPLR 5251 to hold individual defendant judgment debtor in contempt of court, unanimously affirmed, without costs.

Plaintiff failed to demonstrate with clear and convincing evidence that defendant had refused or willfully neglected to obey the subpoenas (see CPLR 5251; Gray v Giarrizzo, 47 AD3d 765 , 766 [2008]; see generally Pereira v Pereira, 35 NY2d 301 , 308 [1974]). Although defendant’s answers to plaintiffs questions in the deposition could have been more detailed, defendant

p. 743

provided substantial information on his income and holdings. Moreover, some of the questions involved complex financial transactions that occurred approximately four years before the deposition. As such, it cannot be said that defendant’s answers were evasive or nonresponsive (cf. Quantum Heating Servs. v Austern, 100 AD2d 843 , 844 [1984]). Nor did plaintiff show, by clear and convincing evidence, that the documents it sought existed and were in defendant’s possession at the time the subpoenas were served (see Gray, 47 AD3d at 766 ; see also Tener v Cremer, 89 AD3d 75 , 78 [2011]).

Finally, we note that plaintiff may seek a further EBT of defendant. Concur — Friedman, J.E, Sweeny, Renwick, Freedman and Abdus-Salaam, JJ.

Cases cited

Gray v. Giarrizzo 47 AD3d 765 N.Y. App. Div. 2008-01-22 at 766 p. 742
Pereira v. Pereira 35 NY2d 301 N.Y. 1974-10-08 at 308 p. 742
Quantum Heating Services Inc. v. Austern 100 AD2d 843 N.Y. App. Div. 1984-04-02 at 844 p. 743
Tener v. Cremer 89 AD3d 75 N.Y. App. Div. 2011-09-22 at 78 p. 743