| Bennet v Liberty Lines Tr., Inc. |
| 2013 NY Slip Op 03807 [106 AD3d 1038] |
| May 29, 2013 |
| Appellate Division, Second Department |
| Timisha Bennet, Respondent, v Liberty LinesTransit, Inc., et al., Appellants. |
—[*1] Law Office of Michael H. Joseph, PLLC, White Plains, N.Y., forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Westchester County (Giacomo, J.), entered February 17,2012, which granted the plaintiff's motion to hold them in contempt for their allegedfailure to comply with a provision in an order of the same court entered June 17, 2011,imposing conditions upon the acceptance of their late answer, and thereupon for leave toenter a default judgment on the issue of liability.
Ordered that the order entered February 17, 2012, is reversed, on the law, with costs,and the plaintiff's motion to hold the defendants in contempt for their alleged failure tocomply with a provision in an order entered June 17, 2011, imposing conditions upon theacceptance of their late answer, and thereupon for leave to enter a default judgment onthe issue of liability, is denied.
In an order entered June 17, 2011, the Supreme Court denied the plaintiff's motionfor leave to enter a default judgment against the defendants, and granted the defendants'cross motion to compel the acceptance of their late answer, inter alia, upon the conditionthat the defendants pay "the legal fees incurred by the plaintiff in making her motion andin responding to defendants' cross motion." The order entered June 17, 2011, furtherprovided that, if the parties failed to come to an agreement regarding the amount of thelegal fees, they were directed to contact the Supreme Court to schedule a conference withrespect to the issue. The plaintiff's counsel submitted a bill to the defendants' counsel forthe sum of $1,045, representing the legal fees incurred in preparing the motion andresponding to the cross motion. The defendants' counsel responded by offering to pay the$95 fee for the filing of a request for judicial intervention and the $45 fee for the filing ofa motion, but objected to paying any other legal fees, based on the defendants' contentionthat the plaintiff's counsel was retained on a contingency-fee basis.
More than two months after the defendants made their counteroffer, by letter datedSeptember 6, 2011, the plaintiff's counsel wrote to the Supreme Court requesting aconference to resolve the fee dispute. In a letter dated September 13, 2011, thedefendants' counsel joined in the plaintiff's request for a conference. However, onSeptember 29, 2011, without any conference being scheduled, the plaintiff moved tohold the defendants in contempt for their alleged failure to comply with the order enteredJune 17, 2011, and thereupon for the entry of a default judgment. The [*2]Supreme Court granted the plaintiff's motion, and thedefendants appeal.
" 'In order to find that contempt has occurred in a given case, it must be determinedthat a lawful order of the court, clearly expressing an unequivocal mandate, was in effect.It must appear, with reasonable certainty, that the order has been disobeyed. Moreover,the party to be held in contempt must have had knowledge of the court's order. . . Finally, prejudice to the right of a party to the litigation must bedemonstrated' " (Massimi vMassimi, 56 AD3d 624, 624 [2008], quoting Matter of McCormick vAxelrod, 59 NY2d 574, 583 [1983]; see Judiciary Law § 753 [A])."The burden of proof is on the proponent of the contempt motion, and the contempt mustbe established by clear and convincing evidence" (Massimi v Massimi, 56 AD3dat 624).
Here, the plaintiff failed to establish by clear and convincing evidence that thedefendants disobeyed the order entered June 17, 2011. Rather, there was a dispute as tothe interpretation of the order, and the defendants complied with the order by requestinga conference before the Supreme Court to resolve the dispute. Accordingly, the SupremeCourt erred in granting the plaintiff's motion.
In light of our determination, we need not reach the parties' remaining contentions.Skelos, J.P., Hall, Lott and Hinds-Radix, JJ., concur.