In Texiera v. Services for the Underserved, Inc., No. 152677/2020, 2025 WL 355451 (N.Y. Sup Ct, New York County Jan. 23, 2025), an employment discrimination action, the court granted plaintiff’s motion to hold a subpoenaed witness in contempt for failing to appear for their deposition.
From the decision:
In this employment discrimination action, plaintiff moves pursuant to CPLR 2308 and Judiciary Law § 753(A) to hold non-party witness Michelle Sanderson in civil contempt for her failure to appear for a deposition pursuant to a subpoena to testify served by plaintiff. The motion, which was personally served on the non-party witnesses, is unopposed.
It is established that “[p]ursuant to Judiciary Law, a court may punish a party to a pending civil action by fine and/or imprisonment for disobedience to its lawful mandate which disobedience may defeat, impair, impede, or prejudice a right or remedy of another party to the action.” Dankner v. Steefel, 41 A.D.3d 526, 527 (2d Dep’t 2007). Further, “[i]n order to sustain a finding of civil contempt based upon a violation of a court order, it is necessary to establish that the person alleged to have violated the order had actual knowledge of its terms. Moreover, the moving party bears the burden of proving contempt by clear and convincing evidence.” Id. (internal citations and quotations omitted). Here, plaintiff has demonstrated that it personally served the non-party with the subpoena twice at and she failed to appear or otherwise respond to the subpoena. Moreover, the testimony of the non-party witnesses is necessary to the prosecution of this action as the non-party was plaintiff’s direct supervisor to whom plaintiff made complaints about discrimination.
Accordingly, the court granted the motion, to the extent that the witness, Michelle Sanderson, is in contempt of the court’s order and the subpoena issued by plaintiff’s counsel. However, the court afforded the witness to purge the contempt by appearing at plaintiff’s counsel’s office for a deposition by a date and time certain.