Opinion
2011-12-20
L & R EXPLORATION VENTURE, et al., Petitioners–Respondents, v. Jack J. GRYNBERG, Respondent–Appellant.
Frankfurt Kurnit Klein & Selz, P.C., New York (Ronald C. Minkoff of counsel), for appellant. Simon Lesser PC, New York (Leonard F. Lesser of counsel), for respondents.
Frankfurt Kurnit Klein & Selz, P.C., New York (Ronald C. Minkoff of counsel), for appellant. Simon Lesser PC, New York (Leonard F. Lesser of counsel), for respondents.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered April 20, 2011, which, among other things, granted petitioners' motion for an order of contempt, found respondent in civil contempt, and awarded petitioners the attorneys' fees incurred in a Wyoming action, unanimously affirmed, with costs, and the matter remanded for further proceedings consistent with this decision.
Supreme Court providently exercised its discretion in finding respondent in contempt based upon his wife's commencement of an action in Wyoming asserting the same claims that were stayed in this special proceeding in favor of arbitration (22 A.D.3d 221, 804 N.Y.S.2d 286 [2005], lv. denied 6 N.Y.3d 749, 810 N.Y.S.2d 413, 843 N.E.2d 1153 [2005] ). Petitioners did not waive their right to seek contempt by moving to dismiss the Wyoming action based on the res judicata effect of the arbitration award. Seeking dismissal in the Wyoming court, rather than seeking another injunction in New York, was the most expeditious way to protect petitioners' rights and achieve a result consistent with the parties' original intent to arbitrate under their 1960 agreement. Because the arbitration already had been conducted, there is no merit to respondent's contention that petitioners were not prejudiced by having to litigate in Wyoming because it cost no more than arbitration. Although petitioners' attorneys' fees in Wyoming were not recoverable as expenses in the absence of actual loss under Judiciary Law § 773 ( see Riedel Glass Works, Inc. v. Kurtz & Co., Inc., 260 App.Div. 163, 166, 20 N.Y.S.2d 938 [1940], affd. 287 N.Y. 636, 39 N.E.2d 270 [1941] ), we find that they constituted actual loss as a result of the contempt and were properly awarded for that reason. We further find that petitioners are entitled to costs and expenses in responding to this appeal ( see Bell v. White, 77 A.D.3d 1241, 1245, 909 N.Y.S.2d 798 [2010], lv. dismissed 16 N.Y.3d 888, 924 N.Y.S.2d 317, 948 N.E.2d 923 [2011] ).
We have considered respondent's other contentions and find them unavailing.