§ 5251.Disobedience of subpoena, restraining notice or order; false swearing; destroying notice of sale.

This section is based upon CPA §§ 661, 782-a(7), 788, 801 and parts of §§ 781 and 793. The former notorious disregard for court orders and process relating to the enforcement of judgments was due partially to the inadequacies of sanctions and partially to the reluctance on the part of many judges to impose stringent penalties in this area. This section is designed to increase and consolidate former penalties, and to have them conform to those imposed for similar violations of pre-trial disclosure procedures. Former provisions were confusing, misleading and inordinately varied in language and location in the civil practice act. While former § 801 contained a blanket provision that failure to comply with orders or subpoenas in supplementary proceedings was punishable as a contempt, some of the sections dealing with particular orders and subpoenas contained a similar provision. Thus, § 781, which was explicitly referred to in § 801, and §§ 782-a(7) and 793 contained separate penalty provisions, while §§ 775, 779, 782 and 796 apparently relied on the blanket provision in section 801. There was no provision in the article covering executions equivalent to § 801. As a result, no express sanction was provided for willful violation of at least two sections which contained statutory language imposing a mandatory duty. For example, § 687-a(2), distinguished between matured and unmatured debts and provided that in the latter case payment to the sheriff was merely permissive while in the former it was mandatory (see Law Rev Comm’n Rep 364 (1952)), but no penalty was provided for a willful failure to pay a matured and liquidated debt. Smith v Top Notch Bakers, 206 Misc 265, 134 NYS2d 744 (County Ct 1954) motion to have garnishee punished for contempt denied; Elson v Kautzman, 117 NYS2d 518 (NYC Munic Ct 1952) (motion for order directing compliance denied). Similarly, although § 684(2) provided that it “shall be the duty” of a person served with a garnishee execution to pay the specified amount to the sheriff, if the “duty” was disregarded—even willfully—the judgment creditor’s only remedy was a separate suit for the amount withheld. At least in this situation, however, the judgment creditor was not required to obtain leave of the court to bring the action, as he must have done under § 687-a(6), apparently because the execution itself might have been obtained only upon court order.

Even where sanctions were provided, they were frequently ignored in practice: the violator was compelled to do what he was initially supposed to do, with no additional penalties being imposed against him. Thus, although failure to appear for an examination pursuant to a subpoena or court order was punishable as a contempt, judgment debtors had learned that they might willfully flout the order or subpoena, for upon their appearance pursuant to an order to show cause, courts almost invariably required only submission to the examination. In many cases, it was to the debtor’s advantage to also ignore a show cause order, for the usual consequences of such repeated disregard of court process was a finding order requiring payment in monthly installments of a fine of no more than $250 to be applied in satisfaction of the judgment. See Judiciary Law § 773. In effect, the judgment creditor had converted his judgment into an order for payment without proof of the ability of the debtor to pay. But the order might have been small benefit to him, for the “easy payment plan” thus forced upon the creditor might have been justifiably rejected by him previously because of the debtor’s ability to make larger or more frequent payments.

In courts where failure to appear upon the show cause order resulted in the issuance of a bailable body attachment, some judges also imposed no penalty when the debtor was brought in but merely required him to submit to an examination.

Former § 782-a(7), applicable to financial institutions which default on an information subpoena, set a fixed penalty of fifty dollars. The general contempt provisions of this section and of § 2308(a) replace that provision; the former was applicable both to default and to false swearing in reply to an information subpoena. The provision that false swearing upon an examination is punishable as a contempt is based upon former § 788.

Under this section, persons may be punished for contempt even though they were not served personally, since § 5222 provides for service of restraining notices by registered or certified mail, return receipt requested, and §§ 5223 and 5224 provide for service of an information subpoena in the same way. Since the penalties will not be imposed unless violations are willful, the judgment creditor will be required to show actual notice. There is no constitutional requirement of personal service, nor is the imposition of contempt penalties where there has not been personal service novel in New York. As already indicated, § 782-a(7) provided for punishment by contempt although the subpoena pursuant to that section might have been served by ordinary mail. See also People ex rel. Stearns v Marr, 181 NY 463, 74 NE 431 (1905) (injunction); Underhill v Schenck, 205 App Div 182, 199 NY Supp 611 (2d Dep’t 1923) (interlocutory judgment directing accounting); People ex rel. New York State Labor Relations Board v Wheeler, Inc., 177 Misc 945, 31 NYS2d 785 (Sup Ct 1941) (order enforcing State Labor Relations Board decision).

Restraining notices and subpoenas are required to set forth the consequences of failing to comply with their direction or furnishing false information. See §§ 5222(a), 5223 and 5224(a).

The provision in this section for punishment of willful defacing or removal of a posted notice replaces CPA § 661. The former section provided for a forfeiture of fifty dollars to each of the parties, but it has apparently never been utilized.

Former § 714, prescribing a forfeiture of one thousand dollars by the sheriff for failure to give notice of a sale of real property has been deleted. It apparently has never been utilized and represents an obsolete approach to the enforcement of the sheriff’s duties. Cf. Penal Law § 1857.

This section is not applicable to a failure to comply with a judgment entered upon a proceeding brought pursuant to this article. The sole penalty for such a failure, as under former § 794(2), is entry of a judgment. The rationale is the same as that governing judgments generally: a person should not be punished for failing to do something which he may be unable to do. A debtor of the judgment debtor unable to pay his debts should not be placed in any worse position than the judgment debtor himself.

Add, L 1962, ch 308; amd, L 1965, ch 773, eff Sept 1, 1965.