| Collins v Telcoa Intl. Corp. |
| 2011 NY Slip Op 05948 [86 AD3d 549] |
| July 12, 2011 |
| Appellate Division, Second Department |
| Joseph Collins, Appellant, v Telcoa International Corp. etal., Respondents, et al., Defendants. Martin P. Unger et al., NonpartyRespondents. |
—[*1] Martin P. Unger, Garden City, N.Y., nonparty respondent pro se. Certilman Balin Adler & Hyman, LLP, East Meadow, N.Y. (Thomas J. McNamara, CandaceReid Gladston, and Donna-Marie Korth of counsel), nonparty respondent pro se. Blank Rome, LLP, New York, N.Y. (Leonard D. Steinman of counsel), nonparty respondentpro se.
In an action, inter alia, for dissolution of two corporations and to recover damages for breachof fiduciary duty, the plaintiff appeals, as limited by his brief, from so much of an order of theSupreme Court, Queens County (Agate, J.), dated June 18, 2010, as denied that branch of hiscross motion which was to hold the defendants Telcoa International Corp., Telcoa New YorkCorp., Central Station Signals, Inc., and Robert Dolin, and nonparty attorneys Martin P. Ungerand Certilman Balin Adler & Hyman, LLP, in civil contempt for their alleged violation of acourt-ordered escrow arrangement, and denied that branch of his separate motion which was tohold nonparty attorneys Blank Rome, LLP, in civil contempt for its alleged violation of the samecourt-ordered escrow arrangement.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
Where, as here, a party seeks an adjudication of civil contempt based upon a violation of acourt order, he or she must establish a willful and deliberate violation of a lawful court orderexpressing a clear and unequivocal mandate (see Judiciary Law § 753; McCainv Dinkins, 84 NY2d 216, 226 [1994]; Matter of McCormick v Axelrod, 59 NY2d574, 583 [1983]; Delijani vDelijani, 73 AD3d 972, 973 [2010]; Rupp-Elmasri v Elmasri, 305 AD2d 394,395 [2003]). The burden of proof is on the party seeking the contempt adjudication, and the factsconstituting the basis of the contempt must be proved by clear and convincing evidence (see Miller v Miller, 61 AD3d 651,652 [2009]; Denaro v Rosalia, 50AD3d 727 [2008]; Rienzi vRienzi, 23 AD3d 447, 448 [2005]; Vujovic v Vujovic, 16 AD3d 490, 491 [2005]). The question ofwhether to then grant a civil contempt motion and, if so, the fixing of the appropriate remedy, isaddressed to the sound discretion of the motion court upon consideration of the surroundingcircumstances (see [*2]Matter of Philie v Singer, 79 AD3d 1041, 1042 [2010]; Bais Yoel Ohel Feige v CongregationYetev Lev D'Satmar of Kiryas Joel, Inc., 78 AD3d 626 [2010]; Educational ReadingAids Corp. v Young, 175 AD2d 152 [1991]; Matter of Storm, 28 AD2d 290 [1967]).
Contrary to the plaintiff's contention, he failed to sustain his burden. Given the differencesbetween the terms of the court orders at issue and of the stipulation entered into by the parties,the Supreme Court properly determined that the respondents did not willfully violate a clear andunequivocal mandate of the court (seegenerally Quick v ABS Realty Corp., 13 AD3d 1021, 1022 [2004]; Muwwakkil vMetropolitan Suburban Bus Auth., 289 AD2d 309 [2001]).
In view of the foregoing, we need not reach the parties' remaining contentions. Mastro, J.P.,Florio, Belen and Chambers, JJ., concur.