| Rose v Levine |
| 2011 NY Slip Op 04443 [84 AD3d 1206] |
| May 24, 2011 |
| Appellate Division, Second Department |
| Steve Rose, Appellant, v Julie H. Levine et al., Defendants,and Robert Levine, Respondent. |
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In an action to foreclose three mortgages, the plaintiff appeals from (1) an order andjudgment (one paper) of the Supreme Court, Westchester County (Lefkowitz, J.), dated October19, 2009, which, after a hearing, and upon an order of the same court dated March 13, 2006, interalia, granting the motion of the defendant Robert Levine for a preliminary injunction and theseparate motion of that defendant to hold the plaintiff in civil and criminal contempt for violatinga temporary restraining order of the same court dated January 19, 2006, granted that branch of themotion of the defendant Robert Levine which was to hold the plaintiff in civil contempt forviolating the preliminary injunction in the order dated March 13, 2006, imposed a fine in the sumof $38,421.22, representing the costs and expenses of that defendant, plus $250 pursuant toJudiciary Law § 773, directed the plaintiff's incarceration for a period of three months oruntil he purged the civil contempt by paying the civil fine, and fined him $1,000 for his criminalcontempt, and (2) an order and judgment (one paper) of the same court dated February 3, 2010,which, inter alia, upon the order and judgment dated October 19, 2009, among other things,granting that branch of the motion of the defendant Robert Levine which was to hold him in civilcontempt for his violation of the preliminary injunction in the order dated March 13, 2006,imposed a fine in the sum of $106,338.48, representing the costs and expenses of that defendant,plus $250 pursuant to Judiciary Law § 773, and directed the plaintiff's incarceration for aperiod of six months or until he purges the civil contempt by paying the fine.
Ordered that the orders and judgments are affirmed, with one bill of costs.
In an order and judgment dated October 19, 2009, the Supreme Court, inter alia, imposedfines based upon its order dated March 13, 2006, among other things, holding the plaintiff incivil and criminal contempt for violating a temporary restraining order of the same court datedJanuary 19, 2006. Those findings of civil and criminal contempt were upheld by this Court on theplaintiff's prior appeal from an order dated March 13, 2006 (see Rose v Levine, 37 AD3d691, 693 [2007]). Therefore, the plaintiff's current challenge to the Supreme Court's finding ofcriminal contempt for violation of the temporary restraining order dated January 19, 2006, hasalready been determined to be without merit.[*2]
In the order and judgment dated October 19, 2009, theSupreme Court also granted that branch of the motion of the defendant Robert Levine(hereinafter Levine) which was to hold the plaintiff in civil contempt for his willful violation of apreliminary injunction in the order dated March 13, 2006. To prevail on a motion to punish forcivil contempt, the movant must establish, by clear and convincing evidence (1) that a lawfulorder of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the orderwas disobeyed and the party disobeying the order had knowledge of its terms, and (3) that themovant was prejudiced by the offending conduct (see Coyle v Coyle, 63 AD3d 657, 658[2009]; Kalish v Lindsay, 47 AD3d 889, 891 [2008]; Galanos v Galanos, 46AD3d 507, 508 [2007]; Biggio v Biggio, 41 AD3d 753, 753-754 [2007]; GlovemanRealty Corp. v Jefferys, 29 AD3d 858, 859 [2006]). Here, Levine met his burden (seeGalanos v Galanos, 46 AD3d at 508; Casavecchia v Mizrahi, 57 AD3d 702, 703-704[2008]). Therefore, the Supreme Court correctly granted that branch of Levine's motion whichwas to hold the plaintiff in civil contempt.
The plaintiff's challenges to the amount of the civil fine imposed in the order and judgmentdated February 3, 2010, are improperly raised for the first time on appeal or are without merit.The Supreme Court properly imposed a fine which included the reasonable counsel fees incurredby Levine in connection with the plaintiff's civil contempt, and the amount of the fine is fullysupported by the evidence in the record (see Sager Spuck Statewide Supply Co. v Meyer,282 AD2d 971, 973 [2001]; Glanzman v Fischman, 143 AD2d 880, 881 [1988];Judiciary Law § 773).
The plaintiff's remaining contentions are without merit. Angiolillo, J.P., Florio, Lott andAustin, JJ., concur.