| Casavecchia v Mizrahi |
| 2008 NY Slip Op 09938 [57 AD3d 702] |
| December 16, 2008 |
| Appellate Division, Second Department |
| Joseph Casavecchia, Sr., Respondent, v William W. Mizrahi etal., Appellants. |
—[*1] Westerman Ball Ederer Miller & Sharfstein, LLP, Mineola, N.Y. (Jeffrey A. Miller and RichardGabriele of counsel), for respondent.
In an action, inter alia, to recover damages for conversion and for an injunction compelling thedefendants William W. Mizrahi and Hills of Heartland, LLC, to make certain distributions to themembers of Hills of Heartland, LLC, the defendants William W. Mizrahi, Hills of Heartland, LLC, andCasa Mason Corp. appeal (1) from an order of the Supreme Court, Nassau County (Warshawsky, J.),entered September 14, 2007, which, among other things, granted that branch of the plaintiff's motionwhich was to hold the defendant William W. Mizrahi in civil and criminal contempt for failing to obeythree earlier court orders and (2), as limited by their brief, from stated portions of an order of the samecourt dated October 2, 2007, which, upon renewal and reargument, inter alia, adhered to so much ofthe original determination in the order entered September 14, 2007, as granted that branch of theplaintiff's motion which was to hold the defendant William W. Mizrahi in civil and criminal contempt.
Ordered that the appeals by the defendants Hills of Heartland, LLC, and Casa Mason Corp. aredismissed, as those defendants are not aggrieved by the orders appealed from (see CPLR5511); and it is further,
Ordered that the appeal by the defendant William W. Mizrahi from the order entered September14, 2007 is dismissed as that order was superseded by the order dated October 2, 2007, made uponrenewal and reargument; and it is further,[*2]
Ordered that the order dated October 2, 2007 is affirmedinsofar as appealed from by the defendant William W. Mizrahi; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
To sustain a finding of civil contempt, a court must find that the alleged contemnor violated a lawfulorder of the court, clearly expressing an unequivocal mandate, of which that party had knowledge, andthat as a result of the violation a right of a party to the litigation was prejudiced (see JudiciaryLaw § 753 [A] [3]; McCain v Dinkins, 84 NY2d 216, 226 [1994]; Kalish v Lindsay, 47 AD3d 889[2008]; Giano v Ioannou, 41 AD3d427 [2007]). "[I]t is not necessary that the disobedience be deliberate or willful; rather, the mereact of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedesor prejudices the rights of a party" (Hinkson vDaughtry-Hinkson, 31 AD3d 608, 608 [2006] [internal quotation marks and citationsomitted]).
Here, the record reveals that the defendant William W. Mizrahi was aware of the clear andunequivocal terms of three orders previously issued by the Supreme Court, and violated them, and thatsuch conduct defeated, impaired, impeded, or prejudiced the plaintiff's rights or remedies. Contrary toMizrahi's contention, he failed to raise a factual issue warranting a hearing (see Incorporated Vil. of Plandome Manor vIoannou, 54 AD3d 365 [2008]).
Despite the clear and unequivocal mandates of the court, of which Mizrahi was aware, henonetheless continued to violate them, as if the court's orders did not exist. His actions can beinterpreted in no other way than as willful and thus support the finding of criminal contempt as well(see Soho Alliance v World Farm, 300 AD2d 22 [2002]).
Mizrahi's remaining contentions are without merit. Spolzino, J.P., Florio, McCarthy and Dickerson,JJ., concur. [See 2007 NY Slip Op 32914(U).]