| Riverside Capital Advisers, Inc. v First Secured Capital Corp. |
| 2007 NY Slip Op 06853 [43 AD3d 1023] |
| September 18, 2007 |
| Appellate Division, Second Department |
| Riverside Capital Advisers, Inc., Plaintiff, and Winchester GlobalTrust Company Limited, Respondent, v First Secured Capital Corporation et al.,Appellants, et al., Defendants. Thomas B. Donovan et al., NonpartyAppellants. |
—[*1] Rosenberg Calica & Birney, LLP, Garden City, N.Y. (Ronald J. Rosenberg, Kenneth Aneser,and Peter J. Williams of counsel), for defendant-appellant Thomas B. Donovan Family Trust. Kenneth J. Weinstein, Garden City, N.Y., for nonparty appellants Thomas B. Donovan andPamela Donovan. Greenberg Traurig, LLP, New York, N.Y. (Kenneth A. Lapatine, Jennifer L. Zuch, andTimothy D. DiDomenico of counsel), for respondent.
In an action, inter alia, to recover damages for breach of a loan agreement, the defendant FirstSecured Capital Corporation, the defendant Thomas B. Donovan Family Trust, and thenonparties Thomas B. Donovan and Pamela Donovan separately appeal, as limited by theirbriefs, from so much of an order of the Supreme Court, Nassau County (Warshawsky, J.), enteredMarch 10, 2006, as (a) granted that branch of the motion of the plaintiff Winchester Global TrustCompany Limited, as trustee of the Factored Receivables Trust, as successor in interest toHighlands Financial Services, Inc., which was to confirm so much of a report of the same courtdated October 3, 2005 (Franco, J.H.O), as, after a hearing, recommended holding them in civilcontempt for their violation of two prior court orders dated May 24, 2004 and May 25, 2004,[*2]respectively, (b) held them in contempt of court, (c) finedeach of them the sum of $250, and (d) awarded costs and an attorney's fee to the plaintiffWinchester Global Trust Company Limited, as trustee of the Factored Receivables Trust, assuccessor in interest to Highlands Financial Services, Inc.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable bythe appellants appearing separately and filing separate briefs.
In order to prevail on a motion to punish a party for civil contempt, the movant mustdemonstrate that the party charged with the contempt violated a clear and unequivocal mandateof the court, thereby prejudicing a right of another party to the litigation (see JudiciaryLaw § 753 [A] [3]; McCain v Dinkins, 84 NY2d 216, 226 [1994]; Gloveman Realty Corp. v Jefferys, 29AD3d 858, 859 [2006]; Goldsmith v Goldsmith, 261 AD2d 576, 577 [1999]). Themovant bears the burden of proving the contempt by clear and convincing evidence (see Riverside Capital Advisors, Inc. v FirstSecured Capital Corp., 28 AD3d 455, 456 [2006]; Vujovic v Vujovic, 16 AD3d 490, 491 [2005]).
Contrary to the appellants' contentions, the plaintiff Winchester Global Trust CompanyLimited, as trustee of the Factored Receivables Trust, as successor in interest to HighlandsFinancial Services, Inc. (hereinafter the plaintiff) met its burden by proving, by clear andconvincing evidence, that the appellants violated a lawful and unequivocal court mandate, to wit,an explicit directive contained in two prior court orders dated May 24, 2004 and May 25, 2004,respectively, of which they had knowledge and, in so doing, prejudiced the plaintiff's rights.Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which wasto hold the appellants in contempt of court for violating the court's prior orders.
The appellants' remaining contentions are without merit. Rivera, J.P., Goldstein, Skelos andBalkin, JJ., concur.