Supreme Court, Appellate Division, Second Department, New York.
In the Matter of Ronni AUERBACH, Appellant,v.Alvin OLESH, Respondent.Dominic A. Barbara, Nonparty Respondent.
Feb. 5, 1996.
The Supreme Court, Nassau County, Winick, J., denied petitioner's motion to hold respondent and his former attorney in contempt of court for failing to obey subpoena. The Supreme Court, Appellate Division, held that: (1) motion was improperly denied as academic, but (2) motion was properly denied as court had adjourned depositions that were subject of motion.
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Supreme Court improperly denied as academic petitioner's motion to hold respondent and former attorney in contempt of court for failure to obey subpoena for depositions, however, motion was properly denied as respondent's former attorney did not disobey as court had adjourned those depositions. **475 Kirschenbaum & Kirschenbaum, P.C., Garden City (Samuel Kirschenbaum and Ira Levine, of counsel), for appellant.
Scott M. Riemer, New York City, for respondent.
Dominic A. Barbara, Garden City (Maxine K. Last, on the brief), nonparty respondent pro se.
Before BALLETTA, J.P., and O'BRIEN, RITTER, PIZZUTO and ALTMAN, JJ.
*415 MEMORANDUM BY THE COURT.
In a proceeding to enforce a judgment, the petitioner appeals from an order of the Supreme **476 Court, Nassau County (Winick, J.), dated December 5, 1994, which denied as academic her motion to hold the respondent, Alvin Olesh, and his former attorney, Dominic A. Barbara, in contempt of court for failing to obey a subpoena.
ORDERED that the order is affirmed, with one bill of costs payable to the respondents.
The Supreme Court improperly denied as academic the petitioner's motion to hold the respondent and his former attorney in contempt of court. However, the motion was properly denied (see, Educational Reading Aids Corp. v. Young, 175 A.D.2d 152, 572 N.Y.S.2d 39). The record reveals that the respondent and his former attorney did not disobey a subpoena when the respondent failed to appear at depositions on September 8, 1994, and October 12, 1994, since the court had adjourned those depositions.
637 N.Y.S.2d 475, 224 A.D.2d 415
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