| Suiss v Baron |
| 2013 NY Slip Op 03986 [107 AD3d 690] |
| June 5, 2013 |
| Appellate Division, Second Department |
| Ronald Suiss, Respondent, v Marcy R. Baron,Appellant. |
—[*1] Steven G. Legum, Mineola, N.Y. (Gina Biasi of counsel), for respondent.
In an action for the partition of certain real property, the defendant appeals from (1)an order of the Supreme Court, Suffolk County (Mayer, J.), dated November 1, 2010,which, inter alia, granted the plaintiff's motion to adjudge her in civil contempt of court,and (2) an order of the same court, also dated November 1, 2010, which, inter alia,directed the Sheriff of Suffolk County to remove all occupants from the subject premises.
Ordered that the orders are affirmed, with one bill of costs.
"To prevail on a motion to punish a party for civil contempt, the movant mustdemonstrate that the party charged with contempt willfully violated a clear andunequivocal mandate of a court's order, with knowledge of that order's terms, therebyprejudicing the movant's rights" (Rubin v Rubin, 78 AD3d 812, 813 [2010]; seeJudiciary Law § 753 [A] [3]; McCain v Dinkins, 84 NY2d 216, 225-226[1994]; McGrath vMcGrath, 85 AD3d 742 [2011]; Matter of Philie v Singer, 79 AD3d 1041, 1042 [2010]).Additionally, the movant has the burden of proving contempt by clear and convincingevidence (see Matter of Philie v Singer, 79 AD3d at 1042; Vujovic v Vujovic, 16 AD3d490, 491 [2005]).
Here, the record demonstrates by clear and convincing evidence that the defendantfailed to comply with an order of the Supreme Court dated October 13, 2010, whichclearly and unequivocally directed her to either tender to the temporary receiver the sumsdue for use and occupancy of the subject real property or, in the alternative, surrenderpossession of the real property to the receiver, and that her willful failure to complyprejudiced the rights of the plaintiff. Accordingly, the Supreme Court properly, inter alia,granted the plaintiff's motion to adjudge the defendant in civil contempt of court (see Vider v Vider, 85 AD3d906, 908 [2011]; Rose vLevine, 84 AD3d 1206, 1207-1208 [2011]; Manning v Manning, 82 AD3d 1057, 1058 [2011]).
In light of the Supreme Court's adjudication of contempt, the warrant of eviction wasproperly issued.
The defendant's remaining contentions are either raised improperly for the first timeon appeal or without merit. Rivera[*2], J.P., Leventhal,Austin and Miller, JJ., concur.
Motion by the appellant, on appeals from two orders of the Supreme Court, SuffolkCounty, both dated November 1, 2010, inter alia, to strike the respondent's brief on theground that it refers to matter dehors the record. By decision and order on motion of thisCourt dated December 12, 2012, the branch of the motion which was to strike therespondent's brief on the ground that it refers to matter dehors the record was held inabeyance and referred to the panel of Justices hearing the appeals for determination uponthe argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the argument of the appeals, it is
Ordered that the branch of the motion which was to strike the respondent's brief onthe ground that it refers to matter dehors the record is denied. Rivera, J.P., Leventhal,Austin and Miller, JJ., concur.