Opinion
17505 Index No. 158577/14 Case No. 2022–01576
03-14-2023
In the Matter of B & M KINGSTONE, LLC, etc., Petitioner–Appellant, v. MEGA INTERNATIONAL COMMERCIAL BANK LTD., formerly known as International Commercial Bank of China, Respondent–Respondent.
Baker & Hostetler LLP, New York (John Siegal of counsel), for appellant. Kirkland & Ellis LLP, New York (David I. Horowitz of counsel), for respondent.
Baker & Hostetler LLP, New York (John Siegal of counsel), for appellant.
Kirkland & Ellis LLP, New York (David I. Horowitz of counsel), for respondent.
Webber, J.P., Oing, Scarpulla, Mendez, Rodriguez, JJ.
Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about February 24, 2022, which, to the extent appealed from as limited by the briefs, denied petitioner's motion to hold respondent in contempt or, in the alternative, for a determination about the bank examination privilege, unanimously affirmed, with costs.
To find someone in civil contempt, "it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect" ( El–Dehdan v. El–Dehdan, 26 N.Y.3d 19, 29, 19 N.Y.S.3d 475, 41 N.E.3d 340 [2015] [internal quotation marks omitted]). In the 2018 order that petitioner alleges respondent violated the court denied both respondent's motion to quash four subpoenas and petitioner's cross motion to compel compliance, and gave respondent the right to designate which witness would be deposed first, which respondent did. Even if the 2018 order did clearly require respondent to produce a witness with knowledge relevant to petitioner's satisfaction of its judgment, petitioner did not "establish by clear and convincing evidence [respondent]’s violation of the ... order" ( id. at 29, 19 N.Y.S.3d 475, 41 N.E.3d 340 ). The witness that respondent produced did not have perfect knowledge, but the 2018 order contemplated that the first witness offered by respondent might not have all the information petitioner was seeking; the court allowed petitioner to request additional depositions.
Further, even if the deposition transcripts that petitioner offered were admissible, and the court accepted as true the deponents’ testimony, which was somewhat at odds with the testimony of respondent's witness, "the general rule [is] that a witness who lies is not held in civil contempt, but is subject to prosecution for ... perjury" ( Matter of Kitchen, 706 F.2d 1266, 1272 [2d Cir.1983] ; see also id. at 1274–1276 ; People v. Fischer, 53 N.Y.2d 178, 184, 440 N.Y.S.2d 872, 423 N.E.2d 349 [1981] ; Matter of Tamberg v. Waltemade, 19 A.D.2d 874, 875, 244 N.Y.S.2d 193 [1st Dept. 1963] ). There is "a narrow exception" to the above rule ( Kitchen, 706 F.2d at 1275 ): "witnesses who give obviously false evasive and equivocal answers in an effort to avoid providing information" are subject to civil contempt ( id. [internal quotation marks omitted]). However, this must be proven "by clear and convincing evidence" ( id. ). Respondent's witness’ answers here were "not so inherently incredible as to fall within the narrow exception" ( id. at 1276 ; cf. People v. Gottfried, 61 N.Y.2d 617, 619, 471 N.Y.S.2d 844, 459 N.E.2d 1281 [1983] ).
Contrary to petitioner's contention, the court was not required to hold an evidentiary hearing before denying its contempt motion. "[I]f it appears that there is a bona fide dispute in material and relevant facts, the court may set the matter down for a hearing" ( Matter of Storm, 28 A.D.2d 290, 295, 284 N.Y.S.2d 755 [1st Dept. 1967] ). Petitioner did not prove, by clear and convincing evidence, that the alleged perjury constituted contempt, therefore the issues on which petitioner wanted witnesses to testify were not material and relevant.
The court providently exercised its discretion by not ruling whether the questions that petitioner asked at the deposition and as to which respondent instructed the witness not to answer fell under Banking Law § 36(10). At oral argument, petitioner conceded that those questions were not the essence of the information it sought. Moreover, there is no indication that it was going to continue the deposition to ask those questions. "[T]he courts should not perform useless ... acts and thus should not resolve disputed legal questions unless this would have an immediate practical effect on the conduct of the parties" ( New York Pub. Interest Research Group, Inc. v. Carey, 42 N.Y.2d 527, 530, 399 N.Y.S.2d 621, 369 N.E.2d 1155 [1977] ).
We have considered the remaining arguments and find them unavailing.