| Miller v Miller |
| 2009 NY Slip Op 02760 [61 AD3d 651] |
| April 7, 2009 |
| Appellate Division, Second Department |
| Heather Miller, Respondent, v Daniel Miller,Appellant. |
—[*1]
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from so much of an order of the Supreme Court, Suffolk County (MacKenzie, J.), dated February11, 2008, as granted those branches of the plaintiff's motion which were to hold him in contemptof court for failure to comply with discovery and for an award of counsel fees in the sum of$8,800.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the plaintiff's motion which were to hold the defendant in contempt of court forfailure to comply with discovery and for an award of counsel fees in the sum of $8,800 aredenied.
In this matrimonial action, the plaintiff moved, inter alia, to hold the defendant in contemptof court for failure to comply with discovery and for an award of counsel fees to cover the costsof the motion. In the order appealed from, the Supreme Court granted those branches of theplaintiff's motion. We reverse the order insofar as appealed from.
In order to find a party in civil contempt of court pursuant to Judiciary Law § 753, theapplicant must demonstrate by clear and convincing evidence that the alleged contemnor hasintentionally engaged in conduct which violated a lawful order of the court clearly expressing anunequivocal and explicit mandate (see McCain v Dinkins, 84 NY2d 216, 226 [1994];Pereira v Pereira, 35 NY2d 301, 308 [1974]; Ottomanelli v Ottomanelli, 17 AD3d 647 [2005]; Matter ofHoglund v Hoglund, 234 AD2d 794 [1996]), thereby prejudicing the right of a party to thelitigation (see Judiciary Law § 753 [A]; Matter of Department of Envtl.Protection of City of N.Y. v Department of Envtl. Conservation of State of N.Y., 70 NY2d233, 240 [1987]).
Applying these principles, we find that the Supreme Court improperly found the defendant[*2]in contempt of court. Given the defendant's overallcompliance with the preliminary conference order, production of certain documents in court, andthe rescheduling of depositions with the approval of the court, the finding of contempt againsthim was unwarranted (see Judiciary Law § 753; Berliner v Berliner, 33 AD3d 744[2006]; Ottomanelli v Ottomanelli,17 AD3d 647 [2005]; Kawar v Kawar, 231 AD2d 681, 682 [1996]), and the plaintiffwas not entitled to an award of counsel fees in the sum of $8,800. Skelos, J.P., Fisher, Santucciand Balkin, JJ., concur.