Jacobs v. Gray

210 A.D.3d 1343

179 N.Y.S.3d 414

Robert JACOBS, Respondent,

v.Jack Joseph GRAY, Also Known as Jack Gray, et al., Appellants.

533980

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 20, 2022

Decided and Entered: November 23, 2022

Hegge & Confusione, LLC, New York City (Michael Confusione of counsel), for appellants.

Hinman, Howard & Kattell, LLP, Binghamton (Daniel R. Norton of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Aarons, Pritzker and McShan, JJ.

MEMORANDUM AND ORDER

Aarons, J. Appeal from an order of the Supreme Court (Richard D. Northrup Jr., J.), entered August 5, 2021 in Delaware County, which granted plaintiff's motion to hold defendant Valerie Pulver in contempt.

In 2017, a default judgment was entered against defendants. After defendants failed to satisfy this judgment, plaintiff served an information subpoena upon defendant Valerie Pulver, the spouse of defendant Jack Joseph Gray. The subpoena demanded that Pulver answer a written questionnaire appended to the subpoena, as well as submit to a deposition. Pulver answered the questionnaire in April 2019 but did not sit for a deposition. Plaintiff thereafter moved for, as relevant here, an order of contempt based upon Pulver's "false swearing in answering written questions" and her willful failure to sit for a deposition. Pulver was eventually deposed and, following the deposition, plaintiff withdrew that part of the motion seeking contempt on the basis of Pulver's failure to appear for a deposition. Supreme Court granted plaintiff's motion.¹ This appeal ensued.

"[F]alse swearing ... in answering written questions ... shall ... be punishable as a contempt of court" ( CPLR 5251 ). "To sustain a civil contempt, a lawful judicial order expressing an unequivocal mandate must have been in effect and disobeyed" ( McCain v. Dinkins, 84 N.Y.2d 216, 226, 616 N.Y.S.2d 335, 639 N.E.2d 1132 [1994] [citations omitted]). Contempt "must [be] establish[ed] by clear and convincing evidence," and a hearing must "be conducted if a factual dispute exists which cannot be resolved on the papers alone" ( Martin v. Martin, 163 A.D.3d 1139, 1141, 81 N.Y.S.3d 258 [3d Dept. 2018] [internal quotation marks and citations omitted]).

Question 6 on the questionnaire asked Pulver, "What amount of income have you received from your trade or profession during 2015, 2016, and 2017?" Question 35 asked Pulver, "How do you pay for your living expenses? [Wh]at is the source of your income which you use to support yourself?" Question 36 asked Pulver, "Do you receive any money from others to help support yourself?" and also asked her to give "the amounts that such persons contribute[d] for [her] support." According to plaintiff, Pulver gave false answers on the questionnaire because she did not report various monies received as part of her responses to questions 35 or 36. In support of his motion, plaintiff relied on Pulver's deposition testimony wherein she stated that she received money from her sister, as well as from a company owned by an associate of Gray – neither of which was disclosed.

In opposition, defendants tendered evidence that Pulver's sister gave money to Pulver as part of a series of interest-bearing loans and that the sister expected repayment of them by Pulver. In defendants’ view, the loan from Pulver's sister was a debt and did not constitute income within the meaning of question 35. Pulver also testified that she received a final loan from her siste...