Opinion
600621/13
02-24-2016
Rocket Tech Fuel Corp., Plaintiff(s), v. FC Petroleum and Max Unver, Defendant(s).
Attorney for Plaintiff: Nicholas J. Damadeo 27 West Neck Road Huntington, NY 11743
Attorney for Plaintiff: Nicholas J. Damadeo 27 West Neck Road Huntington, NY 11743 Jeffrey S. Brown, J.
The following papers were read on this motion: Papers Numbered Notice of Motion, Affidavits (Affirmations), Exhibits Annexed...1
Plaintiff judgment creditor moves for an order punishing defendant judgment debtor Max Unver a/k/a Mahmut Unver for contempt due to his willful failure to obey an order of this court and for giving false testimony at an examination held pursuant to CPLR Article 52. There is no opposition to this motion despite the fact that defendant has been properly served.
On May 20, 2013 a clerk's judgment was entered against FC Petroleum, Inc. and Max Unver in the amount of $35,864.55. On October 11, 2015 a judgment was entered (Marber, J.) against defendant Max Unver in the amount of $7,500. Counsel for the judgment creditor states that his client has been engaged in ongoing, but unsuccessful, enforcement proceedings against the judgment debtor since 2013.
In support of this application, counsel for plaintiff makes reference to five documents e-filed in a separate action (Rocket Tech Fuel Corp. v Long Beach Limousine & Travel, Inc., Long Beach V.I.P. Limousine, Inc. and Max Unver, Index # 604170/2015). These documents are: 1) the petition in which petitioner Rocket Tech requested, inter alia, an installment order against the two corporations; 2) deposition transcript of Max Unver taken November 12, 2013; 3) US Tax Return Form 11120S for Long Beach Limousine & Travel, Inc. 2005, unsigned; 4) Income Tax Returns for Long Beach VIP Limousine, Inc. 2010-2012; 5) Installment payment order for $2,000 per week (McCormack, J., August 13, 2015) against both limousine companies and Max Unver jointly and severally.
Counsel contends that the judgment debtor made many false statements under oath in a prior proceeding in this court. He points to tax returns to support his contentions. He also states that his client obtained an installment payment order against Mr. Unver's limousine companies. Both companies failed to pay the installment payment order. He contends that Mr. Unver has "complete control" over the two corporations. Further, he perjured himself multiple times at this deposition as documented by his tax returns.
Actual knowledge of a judgment or order is an indispensable element of a contempt proceeding (Shakun v. Shakun, 11 AD2d 724; Matter of Belanoff, 277 App. Div. 1056). A party with actual knowledge of a judgment or order may be held in contempt (Puro v. Puro, 39 AD2d 873, affd., 33 NY2d 805; cf. Present v. Aranyi, 38 AD2d 801). Orchard Park Central School District v Orchard Park Teachers Ass'n., 50 AD2d 462 [4th Dept. 1976]). In order to prevail on a motion to hold a defendant in contempt , the movant must prove by clear and convincing evidence "(1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct" (Bernard—Cadet v. Gobin, 94 AD3d at 1031; see Alderman v. Alderman, 78 AD3d at 620; Galanos v. Galanos, 46 AD3d at 508)" (El Dehdan v. El©Dehdan, 114 AD3d 4 [2d Dept. 2013] aff'd, 26 NY3d 19 [2015]).There is no proof demonstrated here that Mr. Unver had been served with or was even aware of Justice McCormack's installment order.
The court notes the case of State Farm Fire and Cas. v. Parking Sys. Valet Serv. (85 AD3d 761 [2nd Dept. 2011]) which permits a person to beheld in contempt for false swearing at an examination. However, "[w]hen the judgment debtor appears and submits to an examination and there is no evidence tending to show his disobedience to any order or direction of the court, a conviction for contempt cannot be upheld under the provisions of Judiciary Law, section 753 or Civil Practice Act, section 800, even though he swears falsely on such examination. (Fromme v. Gray, 148 NY 695 . This rule has been consistently followed by the lower courts (Matter of Silberman Dairy Co. v. Econopouly, 177 App. Div. 97), and may be regarded as the established law of this State." (Foster v. Hastings, 263 NY 311, 313 [1934]).
A review of the deposition reveals that Mr. Unver answered all of the questions propounded to him. Plaintiff's counsel, who was present at the deposition, stated that the examination was closed. He further stated that that the defendant Unver was in compliance and cured the contempt. As a result, it appears that the judgment debtor appeared and submitted to an examination. Further, there is no evidence to show his disobedience to any order or direction of the court. Perjury is a crime, and a judgment debtor in this situation is entitled to a trial by jury under the safeguards of the criminal law (id.).
As a result, the judgment debtor cannot be punished for contempt. The motion is therefore denied.
This constitutes the decision and order of this court. All applications not specifically addressed herein are denied. Dated: Mineola, New York February 24, 2016 ENTER: HON. JEFFREY S. BROWN J.S.C.