| Automated Waste Disposal, Inc. v Mid-Hudson Waste, Inc. |
| 2008 NY Slip Op 04043 [50 AD3d 1073] |
| April 29, 2008 |
| Appellate Division, Second Department |
| Automated Waste Disposal, Inc., et al.,Respondents, v Mid-Hudson Waste, Inc., et al., Appellants, et al.,Defendant. |
—[*1] Keane & Beane, P.C., White Plains, N.Y. (Edward F. Beane of counsel), forrespondents.
In an action, inter alia, to permanently enjoin the defendants from improperly soliciting theplaintiffs' customers and inducing them to breach unexpired contracts with the plaintiffs, thedefendants Mid-Hudson Waste, Inc., Robert Kissh, and Timothy Wilson appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Putnam County (O'Rourke, J.), datedDecember 12, 2006, as granted the plaintiffs' motion to hold them in contempt and directed ahearing on the issue of legal fees, costs, and disbursements incurred by the plaintiffs during theunderlying proceedings.
Ordered that the order is reversed insofar as appealed from, on the law, and the matter isremitted to the Supreme Court, Putnam County, for a hearing in accordance herewith and a newdetermination thereafter, with costs to abide the event.
"To succeed on a motion to punish for civil contempt, the moving party must show that thealleged contemnor violated a clear and unequivocal court order and that the violation prejudiceda right of a party to the litigation" (Giano v Ioannou, 41 AD3d 427, 427 [2007]; see JudiciaryLaw § 753 [A] [3]; McCain v Dinkins, 84 NY2d 216, 226 [1994]; Kalish v Lindsay, 47 AD3d 889[2008]). "Contempt must be proven by clear and convincing evidence" (Kalish v Lindsay, 47 AD3d 889,891 [2008]; Gloveman Realty Corp. vJefferys, 29 AD3d 858, 859 [2006]). "A hearing is not mandated 'in every instancewhere contempt is sought; it need only be conducted if a factual dispute exists which cannot beresolved on the papers alone' " (Jaffe vJaffe, 44 AD3d 825, 826 [2007], quoting Bowie v Bowie, 182 AD2d 1049, 1050[1992]). However, [*2]a "hearing must be held if issues of factare raised" (Quantum Heating Servs. v Austern, 100 AD2d 843, 844 [1984]; seeMulder v Mulder, 191 AD2d 541 [1993]). Here, the motion papers presented issues of fact asto whether the appellants violated the temporary restraining order issued by the Supreme Courtthat was in effect from September 14, 2006 to October 19, 2006. Accordingly, the SupremeCourt erred in holding the appellants in contempt without first conducting an evidentiary hearing(see People ex rel. Smulczeski vSmulczeski, 18 AD3d 785, 786 [2005]; Sidhu v Sidhu, 274 AD2d 465, 466[2000]; Mastrantoni v Mastrantoni, 242 AD2d 825, 826 [1997]; Mulder v Mulder,191 AD2d at 542; Matter of Kluge v Walter B. Cooke, Inc., 112 AD2d 230, 232[1985]; Quantum Heating Servs. v Austern, 100 AD2d at 844).
The appellants' remaining contentions either are without merit or need not be reached in lightof our determination. Ritter, J.P., Covello, Angiolillo and McCarthy, JJ., concur.