Opinion
2021-03863 Index 24178/14
06-16-2021
Deidre S. Venables, et al., appellants, v. Marie E. Rovegno, respondent.
Tarbet & Lester, PLLC, East Hampton, NY (Brian J. Lester of counsel), for appellants. Eric Bregman, PLLC, East Hampton, NY (Robert B. Taylor of counsel), for respondent.
Tarbet & Lester, PLLC, East Hampton, NY (Brian J. Lester of counsel), for appellants.
Eric Bregman, PLLC, East Hampton, NY (Robert B. Taylor of counsel), for respondent.
MARK C. DILLON, J.P. LEONARD B. AUSTIN COLLEEN D. DUFFY BETSY BARROS, JJ.
DECISION & ORDER
In an action, inter alia, to permanently enjoin the defendant from interfering with an easement over certain real property, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Paul J. Baisley, Jr., J.), dated March 27, 2019. The order denied the plaintiffs' motion pursuant to Judiciary Law § 753(A)(3) to hold the defendant in civil contempt of an order of the same court dated July 25, 2017, and pursuant to Judiciary Law § 750(A)(3) to hold the defendant in criminal contempt of the same order.
ORDERED that the order dated, is affirmed, with costs.
The parties are neighbors who are involved in litigation regarding an easement for a right-of-way over the defendant's property. In an order dated July 25, 2017 (hereinafter the July 2017 order), the Supreme Court, among other things, granted that branch of the plaintiffs' cross motion which was for summary judgment on the first cause of action to enjoin the defendant from interfering with their use of the easement. Subsequent to that order, the plaintiffs moved pursuant to Judiciary Law § 753(A)(3) to hold the defendant in civil contempt of the July 2017 order, and pursuant to Judiciary Law § 750(A)(3) to hold the defendant in criminal contempt of the same order. The court denied the plaintiffs' motion. The plaintiffs appeal.
"A motion to punish a party for civil contempt is addressed to the sound discretion of the motion court. To prevail on a motion to hold a party in civil contempt pursuant to Judiciary Law § 753(A)(3), the movant must establish by clear and convincing evidence (1) that a lawful order of the court was in effect, clearly expressing an unequivocal mandate, (2) the appearance, with reasonable certainty, that the order was disobeyed, (3) that the party to be held in contempt had knowledge of the court's order, and (4) prejudice to the right of a party to the litigation" (Matter of Mendoza-Pautrat v Razdan, 160 A.D.3d 963, 964 [citations omitted]; see El-Dehdan v El-Dehdan, 26 N.Y.3d 19, 29; Wolfe v Wolfe, 71 A.D.3d 878). "The imposition of punishment for criminal contempt similarly requires a showing that the alleged contemnor violated a clear and unequivocal court mandate" (Wheels Am. N.Y. Ltd v Montalvo, 50 A.D.3d 1130, 1130; see Judiciary Law § 750[A][3]; City Wide Sewer & Drain Serv. Corp. v Carusone, 39 A.D.3d 687, 688). "An essential element of criminal contempt is willful disobedience" (Wheels Am. N.Y. Ltd v Montalvo, 50 A.D.3d at 1130; see Dalessio v Kressler, 6 A.D.3d 57, 66).
Here, the record does not support the plaintiffs' contention that the defendant disobeyed a clear and unequivocal mandate in the July 2017 order which defeated, impaired, impeded, or prejudiced their rights (see Judiciary Law § 753[A]; Dreher v Martinez, 155 A.D.3d 688, 689-690; Chambers v Old Stone Hill Rd. Assoc., 66 A.D.3d 944, 946). Moreover, the plaintiffs failed to meet their burden of showing that the defendant had knowingly, wilfully, and contumaciously violated a clear and unequivocal mandate set forth in the July 2017 order (see Dreher v Martinez, 155 A.D.3d at 689; Wheels Am. N.Y., Ltd v Montalvo, 50 A.D.3d at 1130-1131).
Accordingly, the Supreme Court properly denied the plaintiffs' motion to hold the defendant in civil and criminal contempt of the July 2017 order.
DILLON, J.P., AUSTIN, DUFFY and BARROS, JJ., concur.