Opinion
July 29, 1985
Appeal from the Supreme Court, Suffolk County (Gerard, J.).
Order dated December 12, 1983 modified, on the law, by deleting the first three decretal paragraphs and substituting therefor a provision denying in its entirety the application to punish appellants-respondents and Stein. As so modified, order affirmed.
Appeal from the order dated February 1, 1984 dismissed. No appeal lies from the denial of a motion for reargument ( see, e.g., Matter of Andgar Assoc. v. Board of Zoning Appeals, 30 A.D.2d 672).
Appellants-respondents and Stein are awarded one bill of costs.
By order to show cause dated May 16, 1983, appellants-respondents and Stein were notified to appear and defend accusations of criminal contempt in the deliberate disobedience of a temporary restraining order issued three days earlier. During the hearing on that application, respondent-appellant moved to convert the application to one for civil contempt. The court reserved decisions and apparently first gave notice that it had granted the motion to convert the application to one for civil contempt in its decision handed down after the close of the hearing. This was error, as appellants-respondents were entitled to know which course was being followed or, if both criminal and civil contempt were charged, that they must defend against both charges ( see, e.g., Matter of Drimmer, 97 A.D.2d 792, 793).
Nonetheless, the record reveals that respondent-appellant's evidence failed to sufficiently meet even the lower standard and burden of proof to establish civil contempt ( see, e.g., Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 582-583; N.A. Dev. Co. v Jones, 99 A.D.2d 238). Consequently, the order dated December 12, 1983 must be modified by deleting those provisions which found appellants-respondents guilty of civil contempt, and by denying respondent-appellant's application in its entirety. Mangano, J.P., Thompson, O'Connor and Weinstein, JJ., concur.