| Bernard-Cadet v Gobin |
| 2012 NY Slip Op 03124 [94 AD3d 1030] |
| April 24, 2012 |
| Appellate Division, Second Department |
| Kettly Bernard-Cadet, Appellant, v Shantel Gobin et al.,Defendants, and Mahar Un Nessa, Also Known as Mahar Nessa, et al.,Respondents. |
—[*1] DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Jacob E.Amir of counsel), for respondents.
In an action, inter alia, pursuant to RPAPL article 15 to determine claims to certain realproperty, the plaintiff appeals (1) from a judgment of the Supreme Court, Queens County(Satterfield, J.), entered November 29, 2010, which, upon an order of the same court enteredNovember 18, 2010, granting the motion of the defendant Mahar Un Nessa, also known asMahar Nessa, to hold the plaintiff in civil contempt for violating an order of the same courtentered January 22, 2007, is in favor of that defendant and against her in the principal sum of$82,000, and (2) from an order of the same court (Schulman, J.), entered March 22, 2011, whichgranted the motion of the defendants Mahar Un Nessa, also known as Mahar Nessa, Long BeachMortgage Company, Indymac Bank, FSB, and Mortgage Electronic Registration System, Inc., toconfirm a report of a Judicial Hearing Officer (Risi, J.H.O.), dated February 14, 2011, made aftera hearing, recommending that the complaint be dismissed. The notice of appeal from the orderentered November 18, 2010, is deemed to be a notice of appeal from the judgment (seeCPLR 5512 [a]).
Ordered that the judgment is reversed, on the law, the motion of the defendant Mahar UnNessa, also known as Mahar Nessa, to hold the plaintiff in civil contempt is denied, and the orderentered November 18, 2010, is modified accordingly; and it is further,
Ordered that the order entered March 22, 2011, is reversed, on the facts, and the motion ofthe defendants Mahar Un Nessa, also known as Mahar Nessa, Long Beach Mortgage Company,Indymac Bank, FSB, and Mortgage Electronic Registration System, Inc., to confirm the report ofthe Judicial Hearing Officer, dated February 14, 2011, made after a hearing, recommending thatthe complaint be dismissed, is denied; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff contends that the Supreme Court erred in confirming a report by a JudicialHearing Officer (hereinafter JHO), which, after a hearing, recommended that the complaint bedismissed. Specifically, the JHO determined that the plaintiff had failed to show, by clear andconvincing evidence, inter alia, that the deed and transfer documents which conveyed title to thesubject property from the plaintiff to the defendant Shantel Gobin were forged.[*2]
In reviewing a determination made after a hearing, thepower of the Appellate Division is as broad as that of the trial court, and this Court may renderthe judgment it finds warranted by the facts, taking into account in a close case that the hearingjudge had the advantage of seeing the witnesses (see Northern Westchester Professional ParkAssoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Olympus Servicing, L.P. v Lee, 56 AD3d 537, 538 [2008]; ProHealth Care Assoc., LLP v Shapiro,46 AD3d 792 [2007]; Matter of Fasano v State of New York, 113 AD2d 885,887-888 [1985]). During the hearing before the JHO, the plaintiff testified that she did not signthe deed and transfer documents which conveyed the property to Gobin. She also presented thetestimony of a handwriting expert, who testified that the plaintiff's signatures on these documentswere forged. The defendants failed to present any credible evidence to show that the documentswere not forged. Accordingly, the Supreme Court erred in confirming the report of the JHO,recommending that the complaint be dismissed.
In addition, the Supreme Court erred in granting the motion of the defendant Mahar UnNessa, also known as Mahar Nessa (hereinafter Nessa), to hold the plaintiff in civil contempt forviolating an order entered January 22, 2007. To prevail on a motion to punish for civil contempt,the movant must establish, by clear and convincing evidence (1) that a lawful order of the court,clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed andthe party disobeying the order had knowledge of its terms, and (3) that the movant wasprejudiced by the offending conduct (seeRose v Levine, 84 AD3d 1206, 1207 [2011]; Coyle v Coyle, 63 AD3d 657, 658 [2009]; Kalish v Lindsay, 47 AD3d 889[2008]; Galanos v Galanos, 46AD3d 507 [2007]; Biggio vBiggio, 41 AD3d 753 [2007]; Gloveman Realty Corp. v Jefferys, 29 AD3d 858, 859 [2006]).Here, Nessa failed to show that a lawful order of the court, clearly expressing an unequivocalmandate, was in effect. Accordingly, Nessa's motion to hold the plaintiff in civil contempt forviolating the order entered January 22, 2007, should have been denied. Balkin, J.P., Leventhal,Roman and Sgroi, JJ., concur.