| Gomes v Gomes |
| 2013 NY Slip Op 03454 [106 AD3d 868] |
| May 15, 2013 |
| Appellate Division, Second Department |
| Christian D. Gomes, Appellant, v Steven S.Gomes, Respondent. |
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Bracken Margolin Besunder, LLP, Islandia, N.Y. (John P. Bracken and Zachary D.Dubey of counsel), for respondent.
In an action, inter alia, to recover damages for breach of fiduciary duty, wrongfultermination, and breach of contract, the plaintiff appeals from an order of the SupremeCourt, Suffolk County (Whelan, J.), dated November 21, 2011, which denied, without ahearing, his motion to hold the defendant in civil and/or criminal contempt of an order ofthe same court (Pines, J.), dated September 23, 2011.
Ordered that the order dated November 21, 2011, is reversed, on the law, with costs,and the matter is remitted to the Supreme Court, Suffolk County, for a hearing on theissue of whether the defendant is guilty of civil and/or criminal contempt.
"Civil contempt (see Judiciary Law § 753) 'has as its aim thevindication of a private party to litigation' " (Dalessio v Kressler, 6 AD3d 57, 65 [2004], quotingMcCain v Dinkins, 84 NY2d 216, 226 [1994]). In order to prevail on a motion tohold a party in contempt, the moving party must demonstrate that the party charged withcontempt violated a clear and unequivocal mandate of the court, thereby prejudicing themoving party's rights (see BaisYoel Ohel Feige v Congregation Yetev Lev D'Satmar of Kiryas Joel, Inc., 78 AD3d626, 626 [2010]; HSBCMtge. Corp. v Oberlander, 91 AD3d 721, 722 [2012]). "It is not necessary thatthe disobedience be deliberate or willful; rather, the mere act of disobedience, regardlessof its motive, is sufficient if such disobedience defeats, impairs, impedes, or prejudicesthe rights or remedies of a party" (Matter of Philie v Singer, 79 AD3d 1041, 1042 [2010];see Bais Yoel Ohel Feige v Congregation Yetev Lev D'Satmar of Kiryas Joel,Inc., 78 AD3d at 626). "The burden of proof is on the proponent of the contemptmotion, and the contempt must be established by clear and convincing evidence" (Massimi v Massimi, 56 AD3d624, 624 [2008]; see Matter of Philie v Singer, 79 AD3d at 1042).
"[U]nlike a civil contempt proceeding, [in a criminal contempt proceeding,] proof ofguilt must be established beyond a reasonable doubt" (Muraca v Meyerowitz, 49AD3d 697, 698 [2008]). "The purpose of criminal contempt (see JudiciaryLaw § 750) is to vindicate the authority of the court. No showing of prejudice tothe rights of a party to the litigation is needed 'since the right of the private parties to thelitigation is not the controlling factor' " (Dalessio v Kressler, 6 AD3d at 65,quoting Matter of Department of Envtl. Protection of City of N.Y. v Department ofEnvtl. Conservation of State of N.Y., 70 NY2d 233, 240 [1987] [citations omitted]).However, "[a]n essential element of criminal contempt is willful disobedience.Knowingly failing to comply with a court order gives rise to an inference of willfulnesswhich may be rebutted with evidence of good cause [*2]for noncompliance" (Dalessio v Kressler, 6 AD3dat 66 [citations omitted]; see Matter of Snyder v Snyder, 277 AD2d 734 [2000];Ferraro v Ferraro, 272 AD2d 510, 512 [2000]).
"[A]n application to adjudicate a party in contempt is treated in the same fashion as amotion and a hearing must be held if issues of fact are raised" (Quantum HeatingServs. v Austern, 100 AD2d 843, 844 [1984] [citation omitted]; see Mulder vMulder, 191 AD2d 541, 541 [1993]). However, "a hearing is not necessary whenthere is no factual dispute as to [the party's] conduct unresolvable from the papers on themotion" (Quantum Heating Servs. v Austern, 100 AD2d at 844 [internalquotation marks omitted]; seeAutomated Waste Disposal, Inc. v Mid-Hudson Waste, Inc., 50 AD3d 1073,1074 [2008]; Jaffe v Jaffe,44 AD3d 825, 826 [2007]).
Here, contrary to the Supreme Court's conclusion, the defendant violated theSupreme Court's order dated September 23, 2011, by allowing his staff to shreddocuments at the subject car dealership on September 28, 2011, and October 6, 2011.The order clearly and unequivocally directed the defendant to maintain and preserve allof the dealership's documents. However, the parties' motion papers presented an issue offact as to whether the defendant's failure to comply with the order defeated, impaired,impeded, or prejudiced the plaintiff's rights. Further, questions of fact exist as to whetherthe defendant wilfully failed to comply with the order. Thus, the matter must be remittedto the Supreme Court, Suffolk County, for a hearing on these issues and a newdetermination thereafter.
Finally, since it is undisputed that the defendant had actual knowledge of thecontents of the order dated September 23, 2011, contrary to the defendant's contention,the plaintiff's failure to serve a certified copy of the order upon the defendant would notbe a basis for denying the plaintiff's motion (see Village of Westhampton Beach vSuffolk Asphalt Supply, 253 AD2d 425, 427 [1998]; Puro v Puro, 39 AD2d873 [1972], affd 33 NY2d 805 [1973]). Rivera, J.P., Balkin, Dickerson andCohen, JJ., concur.