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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: August 16, 2021

Pandemic No Excuse for Failing to Respond to Subpoena Served Long Before Pandemic Began

On July 8, 2021, the First Department issued a decision in Sang Cheol Woo v. Spackman, 2021 NY Slip Op. 04287, holding that a contempt order was appropriate where a party was directed to comply with a subpoena issued before the COVID-19 Pandemic and much of the information and documents sought did not require collection from outside sources, explaining:

Clear and convincing evidence supports the court’s entry of the contempt order (El Dehdan v. El Dehdan, 26 NY3d 19, 29 [2015]; Tener v. Cremer, 89 AD3d 75, 78 [1st Dept 2011]). The record established that Spackman disobeyed the plain terms of the court’s earlier order requiring compliance with the subpoena, which clearly mandated that he respond to the subpoena “fully, completely, and truthfully” by March 10, 2020. Spackman failed to provide any answers to the subpoena by the deadline, submitting his first responses nearly three months later. When Spackman finally did respond to the subpoena in June of 2020, the information provided was demonstrably incomplete and untruthful.

Spackman’s reliance on the COVID-19 pandemic as an excuse for his noncompliance falls short. He was served with the subpoena in June of 2019, months before the pandemic emerged. Moreover, not all of the information Spackman was ordered to turn over required collection from third parties or outside sources. Finally, Spackman’s failure to appear at the contempt hearing itself — despite having been offered the option of attending via videoconference, and being on notice that his failure to appear could result in his arrest — was in and of itself sufficient grounds for contempt (see, e.g. Green v. Green, 288 AD2d 436, 437 [2d Dept 2001]).

The attorneys at Schlam Stone & Dolan frequently litigate disputes related to the impact of the COVID-19 pandemic on litigants.

Contact our attorneys at commercialdivisionblog@schlamstone.com if you or a client have questions regarding whether the COVID-19 pandemic impacts a party’s legal rights.

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