Opinion
January 15, 1992
Appeal from the Supreme Court, Kings County (Vaccaro, J.).
Ordered that on the court's own motion, the defendant's notice of appeal is treated as an application for leave to appeal from that portion of the order which referred the matter to a referee to hear and report on the issue, inter alia, of damages, the application is referred to Justice Kunzeman, and leave to appeal from the aforesaid portion of the order is granted by Justice Kunzeman (CPLR 5701 [c]); and it is further,
Ordered that the order is modified by deleting the provision thereof which granted the plaintiff's motion which was to hold the defendant in civil contempt and substituting therefor a provision referring the issue of prejudice to the referee to hear and report in accordance herewith; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
To obtain a contempt order, the moving party must show that the party charged has violated a clear and unequivocal court order and that the violation prejudiced a right of a party to the litigation (see, Matter of McCormick v. Axelrod, 59 N.Y.2d 574, amended on other grounds 60 N.Y.2d 652; Matter of Fishel v. New York State Div. of Hous. Community Renewal, 172 A.D.2d 835). We agree with the defendant's contention that the Supreme Court improvidently exercised its discretion in holding it in contempt.
The order dated October 19, 1988, alleged to be violated, inter alia, required the defendant to return to the plaintiff some $400,000 worth of machinery and equipment then in the defendant's possession pursuant to the parties' secured loan agreement. The plaintiff clearly demonstrated that the defendant violated the order. However, due to the quantity of the machinery involved and the parties' allegations and denials of missing and damaged equipment, the record was insufficient to discern the extent of the violation and the matter was therefore referred to a referee. We find that, for the same reason, the record was inadequate to support a finding that the violation caused prejudice to the plaintiff. We therefore delete the finding of contempt and refer the issue of prejudice to the referee, to hear and report, along with the other issues specified in the order of referral. Kunzeman, J.P., Eiber, Miller and Ritter, JJ., concur.