Mollah v. Mollah

16 Citing cases

  1. Tara W. v. Yitzchok W.

    66 Misc. 3d 1223 (N.Y. Sup. Ct. 2020)

    Discussion In order for a movant to prevail on a motion to hold a party in civil contempt, he or she "must establish by clear and convincing evidence that (1) a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) the movant was prejudiced by the offending conduct" ( Latterman v. Latterman , 174 AD3d 518, 519 [2d Dept 2019] ; see alsoEl-Dehdan v. El-Dehdan , 26 NY3d 19, 29 [2015] ; Shemtov v. Shemtov , 153 AD3d 1295, 1295 [2d Dept 2017] ; Mollah v. Mollah , 136 AD3d 992, 993 [2d Dept 2016] ; Casler v. Casler , 131 AD3d 664, 665 [2d Dept 2015] ; Lundgren v. Lundgren , 127 AD3d 938, 940 [2d Dept 2015] ). "Once the moving party makes this showing, the burden shifts to the alleged contemnor to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order" ( Latterman , 174 AD3d at 519 ; see alsoEl-Dehdan , 26 NY3d at 35 ; Mollah , 136 AD3d at 993 )

  2. Kudla v. Kudla

    173 A.D.3d 1149 (N.Y. App. Div. 2019)   Cited 3 times

    We agree with the Supreme Court's determination granting that branch of the plaintiff's motion which was to hold him in civil contempt. A finding of contempt requires clear and convincing evidence that (1) a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) the movant was prejudiced by the offending conduct (see Judiciary Law § 753[A][3] ; El–Dehdan v. El–Dehdan, 26 N.Y.3d 19, 29, 19 N.Y.S.3d 475, 41 N.E.3d 340 ; Matter ofMendoza–Pautrat v. Razdan, 160 A.D.3d 963, 964, 74 N.Y.S.3d 626 ; Matter ofHalioris v. Halioris, 126 A.D.3d 973, 974, 6 N.Y.S.3d 267 ). "Once the movant establishes a knowing failure to comply with a clear and unequivocal mandate, the burden shifts to the alleged contemnor to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order" ( Mollah v. Mollah, 136 A.D.3d 992, 993, 26 N.Y.S.3d 298 ; seeEl–Dehdan v. El–Dehdan, 26 N.Y.3d at 35, 19 N.Y.S.3d 475, 41 N.E.3d 340 ; Matter ofMendoza–Pautrat v. Razdan, 160 A.D.3d at 964, 74 N.Y.S.3d 626 ). A hearing is required only where the papers in opposition raise a factual dispute as to the elements of civil contempt or the existence of a defense (seeShemtov v. Shemtov, 153 A.D.3d 1295, 1296, 61 N.Y.S.3d 278 ; Mollah v. Mollah, 136 A.D.3d at 993, 26 N.Y.S.3d 298 ).

  3. Wenig Saltiel, LLP v. Bozeman

    2022 N.Y. Slip Op. 50939 (N.Y. App. Term 2022)   Cited 1 times

    Plaintiff demonstrated that the judicial subpoena, clearly expressing an unequivocal mandate, had been in effect; that the subpoena had been disobeyed; that defendant had been served with the subpoena and thus had knowledge of its terms; and that plaintiff had been prejudiced by defendant's failure to appear at the postjudgment deposition (see El-Dehdan v El-Dehdan, 26 N.Y.3d 19, 28-29 [2015]; Madigan v Berkeley Capital, LLC, 205 A.D.3d 900, 905 [2022]; Zeidman v Zeidman, 202 A.D.3d 893, 894 [2022]; Matter of Binong Xu v Sullivan, 155 A.D.3d 1031, 1032 [2017]). The burden then shifted to defendant to refute that showing, or to offer evidence of a defense such as an inability to comply with the order (see El-Dehdan v El-Dehdan, 26 N.Y.3d at 35; Matter of Mendoza-Pautrat v Razdan, 160 A.D.3d 963, 964 [2018]; Mollah v Mollah, 136 A.D.3d 992, 993 [2016]). Defendant, who defaulted on the motion, failed to meet that burden.

  4. Mendoza-Pautrat v. Razdan

    160 A.D.3d 963 (N.Y. App. Div. 2018)   Cited 34 times

    Prejudice is shown where the party's actions "were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party" ( Matter of Figueroa–Rolon v. Torres, 121 A.D.3d 684, 685, 993 N.Y.S.2d 348 ; seeSavel v. Savel, 153 A.D.3d 872, 873, 61 N.Y.S.3d 97 ). In order for contempt sanctions to be imposed pursuant to Judiciary Law § 753(A), "willfulness" need not be shown (seeEl–Dehdan v. El–Dehdan, 26 N.Y.3d at 33–35, 19 N.Y.S.3d 475, 41 N.E.3d 340 ; Dreher v. Martinez, 155 A.D.3d 688, 689–690, 64 N.Y.S.3d 74 ). Once the movant makes the required showing, the burden shifts to the alleged contemnor to refute that showing, or to offer evidence of a defense such as an inability to comply with the order (seeEl–Dehdan v. El–Dehdan, 26 N.Y.3d at 35, 19 N.Y.S.3d 475, 41 N.E.3d 340 ; Matter of Fitzgerald, 144 A.D.3d at 907, 41 N.Y.S.3d 271; Mollah v. Mollah, 136 A.D.3d 992, 993, 26 N.Y.S.3d 298 ). Here, the hearing record established that the father violated unequivocal mandates of the Family Court, of which he was aware, by removing the children from school and vacationing with them for a one-week period in 2015 without timely notice to the mother, failing to facilitate daily phone contact between the mother and the children during that period, and failing to complete the required parenting training.

  5. Shemtov v. Shemtov

    153 A.D.3d 1295 (N.Y. App. Div. 2017)   Cited 13 times

    Old Stone Hill Rd. Assoc., 66 A.D.3d 944, 946, 889 N.Y.S.2d 598 ). To prevail on a motion to hold a party in civil contempt, 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 (see Judiciary Law § 753[A][3] ; El–Dehdan v. El–Dehdan, 26 N.Y.3d 19, 29, 19 N.Y.S.3d 475, 41 N.E.3d 340 ; Matter of Fitzgerald, 144 A.D.3d 906, 907, 41 N.Y.S.3d 271 ). Once the moving party makes this showing, the burden shifts to the alleged contemnor to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order (see El–Dehdan v. El–Dehdan, 26 N.Y.3d at 35, 19 N.Y.S.3d 475, 41 N.E.3d 340 ; Matter of Fitzgerald, 144 A.D.3d at 907, 41 N.Y.S.3d 271; Mollah v. Mollah, 136 A.D.3d 992, 993, 26 N.Y.S.3d 298 ; Lundgren v. Lundgren, 127 A.D.3d 938, 940–941, 7 N.Y.S.3d 393 ). A hearing is required only if the papers in opposition raise a factual dispute as to the elements of civil contempt, or the existence of a defense (see Matter of Fitzgerald, 144 A.D.3d at 907, 41 N.Y.S.3d 271; Matter of Savas v. Bruen, 139 A.D.3d 736, 737, 30 N.Y.S.3d 673 ; El–Dehdan v. El–Dehdan, 114 A.D.3d 4, 17, 978 N.Y.S.2d 239, affd. 26 N.Y.3d 19, 19 N.Y.S.3d 475, 41 N.E.3d 340 ).

  6. Ackerman v. Midura

    145 A.D.3d 647 (N.Y. App. Div. 2016)   Cited 3 times

    The defendant appeals. The Supreme Court providently exercised its discretion in awarding the plaintiff attorneys' fees (see Mollah v. Mollah, 136 A.D.3d 992, 994, 26 N.Y.S.3d 298 ; Le v. Le, 82 A.D.3d 846, 846, 918 N.Y.S.2d 377 ). We note that the plaintiff has not cross-appealed and, therefore, we review the amount of the award solely to determine whether it was excessive (see CPLR 5501 ; Hecht v. New York, 60 N.Y.2d 57, 61–62, 467 N.Y.S.2d 187, 454 N.E.2d 527 ).

  7. Pub. Adm'r of Cnty. of Westchester v. Rahmanan (In re Fitzgerald)

    2016 N.Y. Slip Op. 7646 (N.Y. App. Div. 2016)

    ORDERED that the order is affirmed, with costs. To find a party in civil contempt of court, the movant must demonstrate, 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 (see El-Dehdan v El-Dehdan, 26 NY3d 19, 29; Thimm v Thimm, 137 AD3d 775, 776). Once the party moving to hold another party in civil contempt establishes a knowing failure to comply with a clear and unequivocal mandate, the burden shifts to the alleged contemnor to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order (see Mollah v Mollah, 136 AD3d 992, 993). A hearing is required only if the papers in opposition raise a factual dispute as to the elements of civil contempt, or the existence of a defense (see Matter of Savas v Bruen, 139 AD3d 736, 737). Here, the petitioner, the current trustee of the testamentary trust of Claire S. Albertson Fitzgerald, deceased, commenced this proceeding to hold the appellant, a former trustee of the trust, in civil contempt for failure to comply with an order of the Surrogate's Court dated March 29, 2013.

  8. In re Fitzgerald

    144 A.D.3d 906 (N.Y. App. Div. 2016)   Cited 8 times

    To find a party in civil contempt of court, the movant must demonstrate, 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 (see El–Dehdan v. El–Dehdan, 26 N.Y.3d 19, 29, 19 N.Y.S.3d 475, 41 N.E.3d 340 ; Thimm v. Thimm, 137 A.D.3d 775, 776, 28 N.Y.S.3d 693 ). Once the party moving to hold another party in civil contempt establishes a knowing failure to comply with a clear and unequivocal mandate, the burden shifts to the alleged contemnor to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order (see Mollah v. Mollah, 136 A.D.3d 992, 993, 26 N.Y.S.3d 298 ). A hearing is required only if the papers in opposition raise a factual dispute as to the elements of civil contempt, or the existence of a defense (see Matter of Savas v. Bruen, 139 A.D.3d 736, 737, 30 N.Y.S.3d 673 ).

  9. Cook v. Cook

    142 A.D.3d 530 (N.Y. App. Div. 2016)   Cited 27 times

    Second, it must appear, with reasonable certainty, that the order has been disobeyed. Third, the party to be held in contempt must have had knowledge of the court's order.... Fourth, prejudice to the right of a party to the litigation must be demonstrated’ ” (Thimm v. Thimm, 137 A.D.3d 775, 776, 28 N.Y.S.3d 693, quoting El–Dehdan v. El–Dehdan, 26 N.Y.3d 19, 29, 19 N.Y.S.3d 475, 41 N.E.3d 340 [citations, internal quotation marks, and brackets omitted]; see Mollah v. Mollah, 136 A.D.3d 992, 993, 26 N.Y.S.3d 298 ; Wood v. Wood, 134 A.D.3d 1028, 1029, 22 N.Y.S.3d 499 ). Here, the father failed to sustain his burden because the evidence did not establish that the mother's actions with respect to the father's telephone communication with the children violated an unequivocal mandate contained in the settlement agreement or the so-ordered stipulation of settlement (see Matter of Hughes v. Kameneva, 96 A.D.3d 845, 946 N.Y.S.2d 211 ; Matter of Nelson v. Nelson, 194 A.D.2d 828, 598 N.Y.S.2d 609 ; Matter of Frandsen v. Frandsen, 190 A.D.2d 975, 594 N.Y.S.2d 87 ).

  10. Dep't of Hous. Pres. & Dev. of the N.Y. v. Ohebshalom

    2024 N.Y. Slip Op. 31258 (N.Y. Civ. Ct. 2024)   Cited 1 times

    Accordingly, the court finds that petitioner has established that respondents Highpoint Associates VI, LLC, Daniel Ohebshalom a/k/a Dan Shalom, and Robin Ignico are in civil contempt of the December 6, 2022 Interim Consent Order by clear and convincing evidence (see El-Dehdan, 26 N.Y.3d at 29). As respondents have not raised a factual dispute as to the elements of civil contempt or a viable defense, a hearing is not required for the civil contempt finding to be made (see El-Dehdan, 26 N.Y.3d at 17; Mollahv.Mollah, 136 A.D.3d 992, 993 [2d Dept 2016]).