Civil Contempt

Delijani v Delijani, 2010 NY Slip Op 04332 (App. Div., 2nd, 2010)

" To sustain a finding of civil contempt based upon a violation of a
court order, it is necessary to establish that a lawful court order
clearly expressing an unequivocal mandate was in effect
and the
person alleged to have violated the order had actual knowledge of its
(Ottomanelli v Ottomanelli, 17 AD3d 647, 648
[emphasis added], quoting Kawar v Kawar, 231 AD2d 681, 682
[internal quotation marks omitted]; see Judiciary Law § 753; McCain
v Dinkins
, 84 NY2d 216, 227; Miller v Miller, 61 AD3d 651, 652; Massimi v Massimi, 56 AD3d 624). Moreover,
"due process requires that, in contempt proceedings, the contemnor be
afforded an opportunity to be heard at a meaningful time and in a
meaningful manner'"
(Matter of Mosso v Mosso, 6 AD3d 827, 829,
quoting 16D CJS, Constitutional Law § 1425; see Chamberlain v Chamberlain, 24 AD3d 589,
595; Matter of Janczuk v Janczuk, 305 AD2d 680, 681).

In its September 2, 2009, order, the Supreme Court granted that
branch of the plaintiff's motion which was to hold the defendant in
contempt of court "insofar as defendant is found in contempt for his
violation of the June 18, 2009 Order of this Court." However, as noted,
there is no indication that any court order was entered or even issued
on June 18, 2009. Nor can the promise made by defense counsel during
colloquy in open court on that date, regarding restoration of the
electric power, qualify as the " lawful order of the court, clearly
expressing an unequivocal mandate,'" which is necessary before a finding
of contempt can be made
(Massimi v Massimi, 56 AD3d at 624;
quoting Matter of McCormick v Axelrod, 59 NY2d 574, 583; see Ottomanelli v Ottomanelli 17 AD3d 647; Kawar
v Kawar
, 231 AD2d at 682).

We further note that in the order dated September 2, 2009, the
Supreme Court specifically concluded that the plaintiff had failed to
demonstrate her compliance with the December 5, 2008, order and, thus,
that the "defendant cannot be held in contempt for his non-compliance"
with said order (emphasis added). Accordingly, inasmuch as the
defendant was not found to have willfully violated any "order" of the
court, the finding of contempt against him was erroneous (see Massimi
v Massimi
, 56 AD3d at 625; Rienzi v Rienzi, 23 AD3d 447; Ottomanelli v Ottomanelli, 17 AD3d 647).

On a sort of related note, I ran across a case where the trial court was affirmed after sanctioning a party,

Miller v Cruise Fantasies, Ltd., 2010 NY Slip Op 04970 (App. Div., 2nd, 2010)

"A court may sua sponte impose sanctions against an attorney or a
party to the litigation, or against both, but the attorney or party to
be sanctioned must be afforded a reasonable opportunity to be heard" (Kamen v Diaz-Kamen, 40 AD3d 937, 937; see
22 NYCRR 130-1.1[a], [d]; Matter of Griffin v Panzarin, 305 AD2d
601, 603; Kelleher v Mt. Kisco Med. Group, 264 AD2d 760, 761; Morrison
v Morrison
, 246 AD2d 634). Conduct during litigation is frivolous
and subject to sanction and/or the award of costs under 22 NYCRR 130-1.1
"if it is completely without merit in law and cannot be supported by a
reasonable argument for an extension, modification or reversal of
existing law or . . . it is undertaken primarily to delay or prolong the
resolution of the litigation, or to harass or maliciously injure
another" (Astrada v Archer, 71 AD3d 803, 807 [internal
quotation marks omitted]; see Greene v Doral Conference Ctr. Assoc., 18
AD3d 429
, 431; Tyree Bros. Envtl. Servs. v Ferguson Propeller,
247 AD2d 376, 377).

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