New York SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
April 25, 2013
INFINITY TECHNICAL STAFFING, INC., APPELLANT,
MEDLINK VPN, INC., DEFENDANT. RAY VUONO, JAMESON ROSE AND JAMES DECKER, NONPARTY-RESPONDENTS.
Appeal from an amended order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated April 25, 2012.
Infinity Tech. Staffing, Inc. v Medlink Vpn, Inc.
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on April 25, 2013
PRESENT: NICOLAI, P.J., IANNACCI and LaSALLE, JJ
The amended order denied plaintiff's motion to hold nonparties Ray Vuono, Jameson Rose and James Decker in civil contempt for failing to comply with postjudgment information subpoenas.
ORDERED that, on the court's own motion, plaintiff's notice of appeal from an order of the same court dated October 4, 2010, is deemed a premature notice of appeal from the amended order dated April 25, 2012 (see CPLR 5520 [c]); and it is further,
ORDERED that the amended order is affirmed, without costs.
Plaintiff, a professional personnel placement service, commenced this action against defendant following defendant's alleged failure to pay to plaintiff amounts due for its retention of personnel placed by plaintiff. After defendant failed to comply with the payment terms of a settlement and release agreement, plaintiff obtained a judgment against defendant in the principal sum of $12,241.20. In an attempt to enforce the judgment, plaintiff served information subpoenas on Ray Vuono, Jameson Rose and James Decker, all officers of defendant. When plaintiff did not receive any responses to the information subpoenas, it moved for an order holding Vuono, Rose and Decker (the alleged contemnors) in civil contempt for their failure to comply with the information subpoenas. Although plaintiff's motion was unopposed, the District Court, by order dated October 4, 2010, denied the motion, on the ground that contempt had been sought against the alleged contemnors, who were nonparties to the underlying action, by means of a notice of motion rather than a special proceeding. Plaintiff appealed from the order, which was amended by order dated April 25, 2012. We deem the notice of appeal from the order dated October 4, 2010 to be a premature notice of appeal from the amended order (see CPLR 5520 [c]).
Where an alleged contemnor is not a party to the underlying action in which the contempt is alleged to have been committed, jurisdiction over the person of the alleged contemnor will have to be acquired. In such case, the application to punish for contempt must take the form of a special proceeding, which is independent of the underlying action (see Long Is. Trust Co. v Rosenberg, 82 AD2d 591 ). A special proceeding is commenced by serving a notice of petition, together with the petition and the affidavits specified in the notice (see CPLR 403 [b]) "in the same manner as a summons in an action" (CPLR 403 [c]) or by serving an order to show cause in the manner specified therein (CPLR 403 [d]). Because plaintiff sought contempt against the alleged contemnors by way of a motion rather than a special proceeding, the District Court properly denied the motion.
Accordingly, the amended order is affirmed.
Nicolai, P.J., Iannacci and LaSalle, JJ., concur. Decision Date: April 25, 2013
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