| Wheels Am. N.Y., Ltd v Montalvo |
| 2008 NY Slip Op 04079 [50 AD3d 1130] |
| April 29, 2008 |
| Appellate Division, Second Department |
| Wheels America New York, Ltd,Appellant-Respondent, v Felix Montalvo et al.,Respondents-Appellants. |
—[*1] David M. Lira, Garden City, N.Y., for respondents-appellants.
In an action, inter alia, for a permanent injunction based on an alleged breach of a covenantnot to compete contained in certain employment agreements, the plaintiff appeals, as limited byits brief, from so much of an order of the Supreme Court, Suffolk County (Jones, J.), dated June22, 2007, as denied that branch of its motion which was to hold the defendants in civil andcriminal contempt for failure to comply with a prior order dated December 14, 2006, and thedefendants cross-appeal from the same order.
Ordered that the cross appeal is dismissed as withdrawn; and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendants.
To prevail on a motion to punish a party for civil contempt, the movant must demonstratethat the party charged with the contempt violated a clear and unequivocal mandate of the court,thereby prejudicing the movant's rights (see Judiciary Law § 753 [A] [3]; Galanos v Galanos, 46 AD3d 507,508 [2007]; Riverside Capital Advisers,Inc. v First Secured Capital Corp., 43 AD3d 1023, 1024 [2007]; Biggio v Biggio, 41 AD3d 753,753-754 [2007]; Giano v Ioannou,41 AD3d 427 [2007]; Rupp-Elmasri v [*2]Elmasri,305 AD2d 394, 395 [2003]). The movant " 'bears the burden of proving contempt by clearand convincing evidence' " (Galanos v Galanos, 46 AD3d at 508, quoting Dankner v Steefel, 41 AD3d 526,528 [2007]; see Riverside Capital Advisers, Inc. v First Secured Capital Corp., 43 AD3dat 1024; Lutz v Goldstone, 42 AD3d561, 563 [2007]; Biggio v Biggio, 41 AD3d at 754). The imposition of punishmentfor criminal contempt similarly requires a showing that the alleged contemnor violated a clearand unequivocal court mandate (see Judiciary Law § 750 [A] [3]; City Wide Sewer & Drain Serv. Corp. vCarusone, 39 AD3d 687, 688 [2007]; Gerelli Ins. Agency, Inc. v Gerelli, 23 AD3d 341 [2005]; Giorgini v Goldfield, 22 AD3d800 [2005]; City of Poughkeepsie v Hetey, 121 AD2d 496, 497 [1986]). An essentialelement of criminal contempt is willful disobedience (see Dalessio v Kressler, 6 AD3d 57, 66 [2004]). Here, with regardto that branch of the plaintiff's motion which was to hold the defendants in civil and criminalcontempt, the plaintiff failed to meet its burden (see Giorgini v Goldfield, 22 AD3d 800 [2005]; Rupp-Elmasri vElmasri, 305 AD2d at 395). Accordingly, the Supreme Court properly denied that branch ofits motion which was to hold the defendants in civil and criminal contempt for failure to complywith a prior court order.
We do not reach the plaintiff's contention concerning that branch of its motion which was forsummary judgment on the issue of liability, as that branch of the motion was not addressed by theSupreme Court. Thus, it remains pending and undecided (see Hawkins-Bond v Konefsky, 48 AD3d 417 [2008]; Katz vKatz, 68 AD2d 536, 542-543 [1979]). Rivera, J.P., Spolzino, Dillon and Balkin, JJ., concur.