| Town of Riverhead v T.S. Haulers, Inc. |
| 2009 NY Slip Op 09650 [68 AD3d 1103] |
| December 22, 2009 |
| Appellate Division, Second Department |
| Town of Riverhead, Appellant, v T.S. Haulers, Inc.,Respondent. |
—[*1] Scheyer & Jellenik, Nesconset, N.Y. (Stephen R. Jellenik of counsel), forrespondent.
In an action, inter alia, to permanently enjoin the defendant from engaging in a sand and soilmining and processing operation, the plaintiff appeals from an order of the Supreme Court,Suffolk County (Kerins, J.), dated September 2, 2008, which, after a hearing, denied its motionto hold the defendant in civil and/or criminal contempt of a judgment of the same court (Berler,J.) dated March 26, 2004.
Ordered that the order is affirmed, with costs.
To prevail on a motion to punish for civil contempt, the movant must establish, by clear andconvincing evidence (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 (seeCoyle v Coyle, 63 AD3d 657, 658 [2009]; Kalish v Lindsay, 47 AD3d 889 [2008];Galanos v Galanos, 46 AD3d 507 [2007]; Biggio v Biggio, 41 AD3d 753 [2007];Gloveman Realty Corp. v Jefferys, 29 AD3d 858, 859 [2006]). To prevail on a motion topunish for criminal contempt, the movant must establish, beyond a reasonable doubt, the willfuldisobedience of a court's lawful mandate (see Judiciary Law § 750 [A] [3];§ 751; Muraca v Meyerowitz, 49 AD3d 697 [2008]; see also Matter ofRubackin v Rubackin, 62 AD3d 11, 19 [2009]). Here, the plaintiff did not meet its burden(see Wheels Am. N.Y., Ltd v Montalvo, 50 AD3d 1130 [2008]; Panza v Nelson,54 AD2d 928 [1976]). Therefore, the hearing court properly denied the plaintiff's motion to holdthe defendant in civil and/or criminal contempt. Fisher, J.P., Angiolillo, Dickerson andLeventhal, JJ., concur.