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DEFENDANTS ARE REQUIRED TO PRODUCE TAX AND WAGE DOCUMENTS AND TO PROVIDE FACTUAL BASES FOR THEIR REFUSAL TO ANSWER QUESTIONS, SUPREME COURT SHOULD NOT HAVE ACCEPTED DEFENDANTS’ BLANKET ASSERTIONS OF THE PRIVILEGE AGAINST SELF-INCRIMINATION AND SPOUSAL PRIVILEGE IN THIS CONTEMPT PROCEEDING STEMMING FROM AN ACTION TO RECOVER A DEFICIENCY JUDGMENT (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined that the defendant’s blanket assertion of his Fifth Amendment privilege against self-incrimination and his wife’s assertion of her Fifth Amendment and her spousal privileges did not justify the denial of plaintiff’s motion to hold defendant in contempt or the denial of a motion to compel defendant’s wife to submit to a deposition and produce documents. Plaintiff sought payment of a multi-million dollar deficiency judgment. The Third Department explained that tax returns, W-2 forms and 1099 forms fall withing the “required records exception” to the privilege against self-incrimination. The Third Department further found that defendant and his wife must provide a factual basis for their refusal to answer each of the 358 questions posed by plaintiff because there had been no showing that criminal proceedings against the defendant were imminent or that the spousal privilege was applicable:

… [D]efendant’s income tax returns, W-2 wage statements and 1099 forms — fall within the “required records exception” to the privilege against self-incrimination. Under this exception, “[t]he Fifth Amendment privilege which exists as to private papers cannot be asserted with respect to records which are required, by law, to be kept and which are subject to governmental regulation and inspection” … . “To constitute ‘required records,’ the documents must satisfy a three-part test: (1) the requirement that they be kept must be essentially regulatory, (2) the records must be of a kind which the regulated party has customarily kept, and (3) the records themselves must have assumed ‘public aspects’ which render them analogous to public documents” … . …

… [I]t is not evident that every answer to the 358 questions propounded during the May 2015 deposition, and every disclosure of the remaining documents requested in the subpoena, would subject defendant to a real and substantial danger of self-incrimination. The questions put to defendant were those customarily asked at a judgment debtor examination, and there is no indication that the purpose of the deposition was “anything other than an ordinary search of [defendant’s] assets in order to satisfy the judgment against him” … . … [T]here is nothing in this record indicating, nor does defendant assert, that he is the subject of any criminal investigation or proceeding. More to the point, defendant has not shown that his claimed fear of prosecution is anything other than “imaginary” … .

… [W]e conclude that Supreme Court’s order denying plaintiff’s motion to compel as to Chava Nelkenbaum [defendant’s wife] must be reversed and the matter remitted for an in camera inquiry to test the validity of her invocation of the Fifth Amendment privilege as to each of the questions asked and each of the documents demanded of her. To the extent that Chava Nelkenbaum invoked the spousal privilege as a basis for refusing to answer certain questions propounded at the deposition or to produce documents responsive to the subpoena, we note that the privilege “attaches only to those statements made in confidence and ‘that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship'” … . Further, this privilege does not attach to “ordinary conversations relating to matters of business” … . Carver Fed. Sav. Bank v Shaker Gardens, Inc., 2018 NY Slip Op 08975, Third Dept 12-27-18

 

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