| Coyle v Coyle |
| 2009 NY Slip Op 04368 [63 AD3d 657] |
| June 2, 2009 |
| Appellate Division, Second Department |
| Susan Coyle, Respondent, v Timothy Coyle,Appellant. |
—[*1] Bryan L. Salamone, P.C., Dix Hills, N.Y. (Ian S. Mednick of counsel), forrespondent.
In a matrimonial action in which the parties were divorced by judgment entered April 3,2003, the defendant father appeals (1), as limited by his brief, from so much of an order of theSupreme Court, Suffolk County (MacKenzie, J.), dated November 15, 2007, as, without ahearing, granted the motion of the plaintiff mother to hold him in contempt for failure to complywith certain provisions in the parties' so-ordered stipulation of settlement, which wasincorporated but not merged into the judgment of divorce, and (2) from an order of the samecourt dated January 29, 2008, which denied his motion, denominated as one for leave to reargueand renew, but which was, in actuality, one for leave to reargue.
Ordered that the appeal from the order dated January 29, 2008 is dismissed, without costs ordisbursements; and it is further,
Ordered that the order dated November 15, 2007 is reversed insofar as appealed from, on thelaw, without costs or disbursements, and the matter is remitted to the Supreme Court, SuffolkCounty, for a hearing in accordance herewith and a new determination thereafter.
The appeal from the order dated January 29, 2008 must be dismissed. The defendant'smotion, denominated as one for leave to reargue and renew, was, in actuality, one for leave toreargue, because it was not based on new facts (see CPLR 2221 [d] [2]). An orderdenying a motion for leave to reargue is not appealable (see Viola v Blanco, 1 AD3d 506 [2003]).[*2]
To prevail on a motion to punish for civil contempt, themovant must establish (1) that a lawful order of the court, clearly expressing an unequivocalmandate, was in effect, (2) that the order was disobeyed and the party disobeying the order hadknowledge of its terms, and (3) that the movant was prejudiced by the offending conduct (see Galanos v Galanos, 46 AD3d507 [2007]; Biggio v Biggio,41 AD3d 753 [2007]). "A hearing is not mandated in every instance where contempt issought; it need only be conducted if a factual dispute exists which cannot be resolved on thepapers alone" (Jaffe v Jaffe, 44AD3d 825, 826 [2007] [internal quotation marks omitted]).
The record demonstrates that the parties' stipulation of settlement was clear andunambiguous. However, there was an unresolved factual issue concerning whether the defendantviolated certain provisions governing vacations contained in the stipulation, i.e., whether heprovided prior notice of his vacation schedule and contact information to the plaintiff.Accordingly, we remit the matter to the Supreme Court, Suffolk County, for an evidentiaryhearing on the plaintiff's motion to hold the defendant in contempt, and a new determination ofthe motion thereafter (see Kovach v Hurlburt, 267 AD2d 824 [1999]). Rivera, J.P.,Santucci, Chambers and Hall, JJ., concur.