Opinion
2013-02335
11-05-2014
In the Matter of EXECUTIVE LIFE INSURANCE COMPANY OF NEW YORK. Superintendent of Financial Services, formerly known as Superintendent of Insurance of State of New York, respondent; Jeanice Dolan, et al., appellants.
Edward S. Stone, New York, N.Y., for appellants. Sidley Austin LLP, New York, N.Y. (Steven M. Bierman, Martin B. Jackson, and Eamon P. Joyce of counsel), for respondent.
Edward S. Stone, New York, N.Y., for appellants.
Sidley Austin LLP, New York, N.Y. (Steven M. Bierman, Martin B. Jackson, and Eamon P. Joyce of counsel), for respondent.
WILLIAM F. MASTRO, J.P., PETER B. SKELOS, SHERI S. ROMAN, and JOSEPH J. MALTESE, JJ.
Opinion In a proceeding pursuant to Insurance Law article 74 to liquidate the assets of an insolvent insurer, the objectors Jeanice Dolan, Keith Vincent, and Daniel A. Malin, and their attorneys, nonparties Edward S. Stone, Roger P. Christiansen, and Karra J. Porter, appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Galasso, J.), entered January 29, 2013, as granted that branch of the petitioner's motion which was to hold nonparties Edward S. Stone, Roger P. Christiansen, and Karra J. Porter in civil contempt for violation of the anti-suit injunctive provisions set forth in three orders of the same court (Kutner, J., McGinity, J., and Galasso, J., respectively) dated April 23, 1991, December 16, 1992, and April 16, 2012, respectively.
ORDERED that the appeal by the objectors Jeanice Dolan, Keith Vincent, and Daniel A. Malin is dismissed, as they are not aggrieved by the portion of the order appealed from (see CPLR 5511 ); and it is further,
ORDERED that the order is affirmed insofar as appealed from by nonparties Edward S. Stone, Roger P. Christiansen, and Karra J. Porter; and it is further,
ORDERED that one bill of costs is awarded to the petitioner.
To prevail on a motion to punish for civil contempt, the movant must demonstrate that the alleged contemnor violated a clear and unequivocal court order, of which the alleged contemnor had knowledge, thereby prejudicing a right of a party to the litigation (see Judiciary Law § 753[A][3] ; Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 583, 466 N.Y.S.2d 279, 453 N.E.2d 508 ; DeMaio v. Capozello, 114 A.D.3d 899, 900, 981 N.Y.S.2d 121 ; Goldsmith v. Goldsmith, 261 A.D.2d 576, 577, 690 N.Y.S.2d 696 ). “To satisfy the prejudice element, it is sufficient to allege and prove that the contemnor's actions were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party” (Astrada v. Archer, 71 A.D.3d 803, 806–807, 898 N.Y.S.2d 149 ; see Orange County–Poughkeepsie Ltd. Partnership v. Bonte, 37 A.D.3d 684, 686, 830 N.Y.S.2d 571 ).
Here, the petitioner established that the nonparty-appellants—attorneys for several objectors to the liquidation of Executive Life Insurance Company of New York (hereinafter Executive Life)—violated clear and unequivocal orders of the court, of which they had knowledge, by commencing a class action in the United States District Court for the Southern District of New York against the Superintendent of Financial Services of the State of New York, in his capacity as receiver for Executive Life. The commencement of the class action violated the anti-suit injunctive provisions set forth in three court orders entered in this rehabilitation proceeding commenced pursuant to Insurance Law article 74, that was later converted into a liquidation proceeding (see Matter of Executive Life Ins. Co. of N.Y., 103 A.D.3d 631, 959 N.Y.S.2d 513 ). An order of the court must be obeyed until that order is set aside, either by appeal or otherwise, where, as here, the court that issued the order had jurisdiction to issue it (see Astrada v. Archer, 71 A.D.3d at 807, 898 N.Y.S.2d 149 ; Busters Cleaning Corp. v. Frati, 203 A.D.2d 409, 409–410, 610 N.Y.S.2d 558 ; see also Matter of Executive Life Ins. Co. of N.Y., 103 A.D.3d at 633–634, 959 N.Y.S.2d 513 ). The petitioner also demonstrated that the commencement of the class action prejudiced its rights (see Matter of Fishel v. New York State Div. of
Hous. & Community Renewal, 172 A.D.2d 835, 569 N.Y.S.2d 201 ).
The nonparty-appellants' remaining contentions are without merit (see Princess Lida of Thurn and Taxis v. Thompson, 305 U.S. 456, 466, 59 S.Ct. 275, 83 L.Ed. 285 ; compare Donovan v. Dallas, 377 U.S. 408, 412, 84 S.Ct. 1579, 12 L.Ed.2d 409 ).
Accordingly, the Supreme Court properly granted that branch of the petitioner's motion which was to hold the nonparty-appellants in civil contempt.
In light of our determination, we need not reach the petitioner's remaining contention.