| Denaro v Rosalia |
| 2008 NY Slip Op 03163 [50 AD3d 727] |
| April 8, 2008 |
| Appellate Division, Second Department |
| Carol Denaro et al., Respondents, v Stephanie Rosalia etal., Appellants, et al., Defendants. |
—[*1] Sweeney, Gallo, Reich & Bolz, LLP, Rego Park, N.Y. (Michael H. Reich of counsel), forrespondents.
In an action, inter alia, to recover damages for nuisance, the defendants Stephanie Rosaliaand Salvatore Lipari appeal from a judgment of the Supreme Court, Queens County (Elliot, J.),entered July 12, 2007, which, upon an order of the same court dated March 1, 2007, granting theplaintiffs' motion to hold them in contempt of an order of the same court (Polizzi, J.), datedMarch 21, 2006, imposed a fine in the principal sum of $250 for contempt, and awarded theplaintiffs an attorney's fee in the principal sum of $18,960 and costs and disbursements in theprincipal sum of $485.
Ordered that the judgment is reversed, on the law, with costs, the plaintiffs' motion to holdthe appellants in contempt is denied, and the order dated March 1, 2007 is modified accordingly.
To succeed on a motion to hold a party in civil contempt, the moving party must show thatthe alleged contemnor has, with knowledge of its existence, violated a lawful judicial orderexpressing an unequivocal mandate, and also that the violation prejudiced a right of a party to thelitigation (see McCain v Dinkins, 84 NY2d 216, 225-226 [1994]; Matter ofMcCormick v Axelrod, 59 NY2d 574, 583 [1983]; Judiciary Law § 753 [A]). Themoving party must establish the contempt by clear and convincing evidence (see Biggio v Biggio, 41 AD3d753, 754 [2007]; Raphael vRaphael, 20 AD3d 463, 463-464 [2005]).[*2]
The appellants, who are the plaintiffs' next-doorneighbors, allegedly were in contempt of an order preliminarily enjoining them from using"high-powered light fixtures." However, the plaintiffs failed to establish, by clear and convincingevidence, that the appellants used "high-powered light fixtures" after this order was issued.Under these circumstances, the Supreme Court should have denied the plaintiffs' motion to holdthe appellants in contempt for violating the order (see Matter of Romanello v Davis, 49 AD3d 652 [2008]).
In light of our determination, the appellants' remaining contentions have been renderedacademic. Spolzino, J.P., Miller, Covello and Balkin, JJ., concur.