Auerbach v. Olesh

—In a proceeding to enforce a judgment, the petitioner appeals from an order of the Supreme 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 AD2d 152). The record reveals that the respondent and his former attorney did not disobey a subpoena when the respondent failed to appear at depositions on the September 8, 1994, and October 12, 1994, since the court had adjourned those depositions. Balletta, J. P., O’Brien, Ritter, Pizzuto and Altman, JJ., concur.