Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

MARLA OATES A/K/A MARLA LYDAY v. GEORGE H. OATES (12/16/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 1969.NY.44005 <http://www.versuslaw.com>; 306 N.Y.S.2d 108; 33 A.D.2d 133 December 16, 1969 MARLA OATES A/K/A MARLA LYDAY, APPELLANT,v.GEORGE H. OATES, DEFENDANT. BETTY R. BOWDOIN, RESPONDENT Appeal from an order of the Supreme Court at Special Term (Alfred M. Ascione, J.), entered on January 22, 1969 in New York County, which vacated a subpoena duces tecum served upon a witness. Order entered on January 22, 1969, reversed on the law and the facts, without costs or disbursements, and the motion granted without costs. Joel S. Stern for appellant. Martin J. Hertz of counsel (Olshan, Grundman, Frome & Kretchmer, attorneys), for respondent. Steuer, J. Markewich and Bastow, JJ., concur with Steuer, J.; Capozzoli, J. P., concurs in opinion in which Markewich, J., concurs; McGivern, J., dissents in opinion. Author: Steuer


Appeal from an order of the Supreme Court at Special Term (Alfred M. Ascione, J.), entered on January 22, 1969 in New York County, which vacated a subpoena duces tecum served upon a witness. Order entered on January 22, 1969, reversed on the law and the facts, without costs or disbursements, and the motion granted without costs.

Steuer, J. Markewich and Bastow, JJ., concur with Steuer, J.; Capozzoli, J. P., concurs in opinion in which Markewich, J., concurs; McGivern, J., dissents in opinion.

Author: Steuer

 This is a motion to vacate a subpoena in supplementary proceedings. The witness is the mother of the judgment debtor. The judgment was obtained for unpaid alimony and support of the debtor's children. When the debtor was found in contempt he fled the jurisdiction and his whereabouts are unknown to the judgment creditor and all efforts to locate him or to enforce the judgment or obtain support have been successfully frustrated. On this motion to vacate two points have been raised: the validity of the service and the right to examine.

As to the first, it appears almost without question that the process server made several unsuccessful attempts to serve the witness. The contention in the dissent to the contrary must have overlooked about the only fact stated in Mrs. Bowdoin's affidavit, namely, that she was constantly being harassed by the efforts to serve her. Based upon this, service was attempted to be made pursuant to CPLR 308 (subd. 3). The section allows service to be made by the following steps: 1. Mailing to the last known residence. 2. Delivery of the process to a person of suitable age and discretion at the place of business, dwelling house or usual place of abode of the person to be served. 3. Filing proof of the same. This applies to the service of a subpoena addressed to a person found within the State (Beach v. Lost Mountain Manor, 53 Misc. 2d 563, Macken, J.). Pursuant thereto the process server sought the witness at the Dorchester Hotel. At the hotel he was informed that Mrs. Bowdoin, the witness, was not there but that she had left a telephone number. He checked with the telephone company and was informed that Mrs. Bowdoin was listed at that number and the address was 178 East 73rd Street. On several visits to that address he was informed by a Mr. Hughes that Mrs. Bowdoin was then in Europe. Finally on November 14, 1968, Hughes told him that although Mrs. Bowdoin was then in the building he could not see her. He thereupon left the subpoena with him and mailed a copy to the building. None of this is denied except by negative pregnants and the affidavit of an attorney not claiming to have knowledge of the facts. Mrs. Bowdoin submits an affidavit in which she makes no statement whatever as to her residence, her presence in the State, her telephone listing or her connection with the East 73rd Street building. Hughes' affidavit merely states he "conducts" a business known as Bowdoin Antiques in the building. He does not say that Mrs. Bowdoin has no connection with the business, nor does he deny that Mrs. Bowdoin was present in the building at the time of the alleged service. It was further shown that Mrs. Bowdoin's late husband was the prior owner of the building and no explanation is given of the peculiar circumstances of the continuation of the name and the telephone listing.

In the light of the prima facie showing, these failures to deny except by argument and attorney's conclusory statements -- while the persons with knowledge maintain a discrete silence -- indicate clearly that this ground for the motion is pure sham.

On the second ground, the proffered witness' affidavit is drawn almost in the words of section 782 of the superseded Civil Practice Act. The governing provisions of CPLR 5223 are more extensive. All that need be shown is "matter relevant to the satisfaction of the judgment." The judgment creditor asserts that the witness knows the present whereabouts of the debtor, which would certainly be relevant to obtaining satisfaction of the judgment. Also it is alleged that the witness has a joint bank account with the debtor. Although the details of this account are not given, the witness does not deny this execpt in the most conclusory terms.

The order entered January 22, 1969, vacating subpoena in supplementary proceedings should be reversed on the law and the facts and the motion denied without costs.

Opinion REPUBLISHED - December 18, 1969

Order entered on January 22, 1969, reversed on the law and the facts, without costs or disbursements, and the motion denied without costs. Opinion by Steuer, J. Markewich and Bastow, JJ., concur; Capozzoli, J. P., concurs in an opinion in which Markewich, J., also concurs; McGivern, J., dissents in an opinion.

Disposition

The order of this court entered on December 16, 1969, is vacated.

Capozzoli, J. P., concurring:

There can be no doubt that CPLR 5223 provides for a far broader examination of a third party than did its predecessor section 782 of the Civil Practice Act. The latter was limited to an examination of such party concerning property, money or other means of the judgment debtor for satisfying the judgment. CPLR 5223 is not so limited and expressly permits an examination of a third party to the extent that he may be compelled to disclose "all matter relevant to the satisfaction of the judgment".

An examination of the Third Preliminary Report of the Advisory Committee on Practice and Procedure discloses a number of comments relating to CPLR 5223 and 5224. At page 258 (N. Y. Legis. Doc., 1959, No. 17, p. 258) there is the following comment: "The phrase 'all matters relevant to the satisfaction of the judgment' in Section 5223 is new and is designed to change the rule of those cases which have held that examination must be limited to material means for satisfying the judgment. * * * There is no ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.