Supreme Court, Appellate Division, Second Department, New York.
Helen McNULTY, Plaintiff-Respondent,v.Gerald Russell McNULTY, a/k/a Russell McNulty et al., Defendants-Respondents;Donald Pius, Appellant.Louis F. Mascaro et al., Nonparty Witnesses-Respondents.
April 6, 1981.
In suit by wife to set aside transfer of real property by husband to husband's corporation, which then transferred the property to third party, the Supreme Court, Suffolk County, Baisley, J., denied third party's motion for an order punishing husband's attorney and attorney's secretary for contempt for their failure to appear at examination before trial. The Supreme Court, Appellate Division, held that: (1) attorney, who prepared deed from husband and wife to corporation which was allegedly either not signed by her or was signed without her knowledge that it was a deed conveying her interest in the property, and attorney's secretary, who notarized deed, were witnesses hostile to husband and third party, and therefore third party should have been permitted to examine them before trial, and (2) failure of husband's attorney and attorney's secretary to submit to subpoena prejudiced the rights of third party as a defendant, and therefore the witnesses should have been adjudged in contempt of court.
Order reversed, and motion granted.
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In suit by wife to set aside transfer by husband of real property to husband's corporation, which subsequently conveyed it to third party, attorney of husband, who prepared deed from husband and wife to corporation which was allegedly either not signed by her or was signed without her knowledge that it was a deed conveying her interest in the property, and attorney's secretary, who notarized deed, were witnesses hostile to husband and third party, and therefore third party should have been permitted to examine them before trial, despite fact that some communications between husband and attorney would be privileged, as some of them would not be, and as attorney could claim privilege during examination as to the former. CPLR 2308(a), 3101(a)(4), 3103(a), 3106(b), 3107, 4503(a); Judiciary Law § 753.
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Failure of husband's attorney and attorney's secretary, who prepared and notarized deed from husband and wife transferring real property to corporation purportedly owned by husband, which then transferred the property to third party, to submit to subpoena in suit by wife to set aside transfer of the property prejudiced the rights of third party as a defendant, and therefore the witnesses should have been adjudged in contempt of court. CPLR 2308(a), 3101(a)(4), 3103(a), 3106(b), 3107, 4503(a); Judiciary Law § 753. **439 Dreyer & Traub, New York City (Samuel Kirschenbaum and Hannah K. Flamenbaum, New York City, of counsel), for appellant.
Louis F. Mascaro, Huntington, nonparty witness-respondent pro se and for nonparty witness-respondent Messerschmitt (no brief filed).
Before RABIN, J. P., and GULOTTA, WEINSTEIN and THOMPSON, JJ.
MEMORANDUM BY THE COURT.
*581 In a matrimonial action in which plaintiff seeks, inter alia, to set aside a transfer of real property, defendant Donald Pius appeals from an order of the Supreme Court, Suffolk County, dated June 27, 1980, which denied his motion for an order punishing Louis F. Mascaro and Carol A. Messerschmitt for contempt for their failure to appear at examinations before trial.
Order reversed, on the law, with $50 costs and disbursements, motion granted, and Louis F. Mascaro and Carol A. Messerschmitt are adjudged to be in contempt of court. Mascaro and Messerschmitt may purge themselves of the contempt by appearing at an examination before trial. The examination shall proceed upon a written notice of not less than 10 days, to be given by appellant, or at such other time and place as the parties may agree. In the event Mascaro and Messerschmitt, or either of them, fail to appear for the examination before trial, then the matter is to be referred to Special Term for the imposition of an appropriate penalty for the contempt.
Plaintiff commenced an action, inter alia, to set aside a transfer of real property to the defendant corporation (purportedly wholly owned by the defendant husband). Plaintiff alleges that the deed recorded in the Suffolk County Clerk's office was not signed by her, or that if she signed the deed, she did not know that the document was a deed conveying her interest in the property. The defendant corporation transferred the property to Donald Pius, by deed recorded April 5, 1979; plaintiff had filed a notice of pendency against the property on April 2, 1979. Subsequently, Pius, who was granted leave to intervene, served subpoenas and notices to take depositions upon oral examination upon Louis F. Mascaro (the husband's attorney who prepared the deed in question) and Carol A. Messerschmitt (Mascaro's secretary and the notary on said deed). The witnesses refused to appear for the examinations, claiming the attorney-client privilege. Special Term denied Pius' motion to punish the witnesses for contempt, holding that "the information sought to be elicited and the entire transaction would all appear to fall within the privilege".
(1) A party seeking disclosure from a nonparty witness need not move for a court order, but may proceed by serving a subpoena and notice (see CPLR 3101, subd. (a), par. (4); 3106, subd. (b); 3107; Spector v. Antenna & Radome Research Assoc. Corp., 25 A.D.2d 569, 267 N.Y.S.2d 843; Ball v. County of Monroe, 99 Misc.2d 97, 415 N.Y.S.2d 609; Bush Homes v. Franklin Nat. Bank of Long Is., 61 Misc.2d 495, 305 N.Y.S.2d 646). Either the witness or adversary may then apply for a protective order if he chooses to resist the examination (see CPLR 3103, subd. (a)). Here, the witnesses sought to be examined merely refused to attend. In our view, the husband's attorney (and the attorney's secretary) are hostile witnesses who possess material and necessary information; defendant Pius should therefore *582 be permitted to examine them before trial (see CPLR 3101, subd. (a), par. (4); Planned Ind. Centers v. Eric Bldrs., 51 A.D.2d 586, 378 N.Y.S.2d 760). While confidential communications between the husband **440 and the attorney, made in the course of the attorney's employment, will be privileged (see CPLR 4503, subd. (a)), other matters concerning the execution of the deed are not privileged. Should the examiner improperly seek information regarding privileged matters, the witnesses may then exercise their right to claim privilege (see Planned Ind. Centers v. Eric Bldrs., supra; Matter of Macku, 29 A.D.2d 539, 285 N.Y.S.2d 973; cf. Di Francesco v. Di Francesco, 47 Misc.2d 632, 262 N.Y.S.2d 831).
(2) Failure to comply with a subpoena issued by an "officer of the court shall be punishable as a contempt of court" (see CPLR 2308, subd. (a)). Clearly, the witnesses have failed to comply with the subpoenas duly served upon them. "(T)he mere act of disobedience * * * is sufficient to sustain a finding of civil contempt if such disobedience defeats, impairs, impedes or prejudices the rights of a party" (see Great Neck Pennysaver v. Central Nassau Pubs., 65 A.D.2d 616, 617, 409 N.Y.S.2d 544; Judiciary Law, s 753). We hold that the failure to submit to an examination prejudiced the rights of defendant Pius and, thus, the witnesses should be adjudged in contempt of court. However, the witnesses may purge themselves of the contempt by promptly submitting to examinations before trial (see Matter of Ferrara v. Hynes, 63 A.D.2d 675, 404 N.Y.S.2d 674).
437 N.Y.S.2d 438, 81 A.D.2d 581
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