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Arko Mb LLC v. Robert W. O'neel

New York Supreme and/or Appellate Courts Appellate Division, First Department


May 29, 2012

ARKO MB LLC,
PLAINTIFF-APPELLANT,
v.
ROBERT W. O'NEEL, III, ET AL.,
DEFENDANTS-RESPONDENTS.

Arko MB LLC v O'Neel

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 29, 2012

Friedman, J.P., Sweeny, Renwick, Freedman, Abdus-Salaam, JJ.

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 plaintiff's questions in the deposition could have been more detailed, defendant 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 non-responsive (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.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 29, 2012

CLERK

20120529

© 1992-2012 VersusLaw Inc.



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