Sanctions and Contempt (civil and criminal)

Visual Arts Found., Inc. v Egnasko, 2012 NY Slip Op 00646 (1st Dept., 2012)

The motion court improperly denied plaintiff's request for sanctions in its entirety. The court is directed to conduct a hearing to quantify the damages that plaintiff incurred from those [*2]aspects of defendants' litigation conduct that were "frivolous," including, impending discovery, the filing of meritless counterclaims and conduct which was "undertaken primarily to delay or prolong the resolution of the litigation" (22 NYCRR 130-1.1[c][2]). We note that, as Louis Egnasko is presently incarcerated, the hearing may be conducted through written submissions (see 22 NYCRR 130-1.1[d]).

Pentalpha Enters., Ltd. v Cooper & Dunham LLP, 2012 NY Slip Op 00044 (1st Dept., 2012)

Plaintiffs now appeal, having lost in no fewer than four courts of competent jurisdiction, and despite having been warned in the court below that any further prosecution of this matter [*2]would be dangerously close to sanctionable conduct. We are of the opinion that plaintiffs' appeal must, again, be denied on the merits; and that, with this appeal, the conduct of plaintiffs and their attorneys has crossed the line from zealous advocacy to that which is sanctionable under 22 NYCRR 130-1.1.

Commissioners of State Ins. Fund v Kernell, 2012 NY Slip Op 00482 (2nd Dept., 2012)

Contrary to the defendant's contention, the Supreme Court properly denied that branch of his motion which was to hold the plaintiff's counsel in civil contempt. "In order to find that contempt has occurred in a given case, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect," and "[i]t must appear, with reasonable certainty, that the order has been disobeyed" (Matter of McCormick v Axelrod, 59 NY2d 574, 583; see Rubin v Rubin, 78 AD3d 812, 813). In this case, there was no order of the court in effect, expressing an unequivocal mandate, which the plaintiff's counsel disobeyed. Accordingly, the Supreme Court properly denied that branch of the defendant's motion (see Wheels Am. N.Y., Ltd v Montalvo, 50 AD3d 1130, 1130-1131).

The Supreme Court improvidently exercised its discretion, however, in denying that branch of the defendant's motion which was to impose sanctions upon the plaintiff and its counsel pursuant to 22 NYCRR 130-1.1. The defendant demonstrated that the plaintiff and its counsel engaged in frivolous conduct in that they either did not have the necessary documentation upon which to formulate or support a meritorious claim, or, being in possession of the documentation, knew or should have known, based upon prior litigation and correspondence from the defendant, that the plaintiff's claim was completely without merit in law. Under the circumstances, we deem it [*2]appropriate to impose sanctions upon the plaintiff in the sum of $2,500, and upon the plaintiff's counsel in the sum of $1,000 (see 22 NYCRR 130-1.1), payable pursuant to 22 NYCRR 130-1.3.

HSBC Mtge. Corp. v Oberlander, 2012 NY Slip Op 00335 (2nd Dept., 2012)

"A motion to punish a party for civil contempt is addressed to the sound discretion of the motion court" (Chambers v Old Stone Hill Rd. Assoc., 66 AD3d 944, 946; see Educational Reading Aids Corp. v Young, 175 AD2d 152). "In order to prevail on such a motion, the moving party must demonstrate that the party charged with contempt violated a clear and unequivocal mandate of the court, thereby prejudicing the moving party's rights" (Bais Yoel Ohel Feige v Congregation Yetev Lev D'Satmar of Kiryas Joel, Inc., 78 AD3d 626, 626; see McCain v Dinkins, 84 NY2d 216, 226; Chambers v Old Stone Hill Rd. Assoc., 66 AD3d at 946; Matter of Rothschild v Edwards, 63 AD3d 744, 745; Galanos v Galanos, 46 AD3d 507, 508; Rienzi v Rienzi, 23 AD3d 447, 449).

Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying that branch of the motion of the defendant David Oberlander which was to hold the plaintiff and its attorneys in civil contempt for transferring title to the subject real property while a stay pending the hearing and determination of an appeal was in effect. Oberlander failed to meet his burden so as to warrant holding the plaintiff and its attorneys in civil contempt.

Town Bd. of Town of Southampton v R.K.B. Realty, LLC, 2012 NY Slip Op 00200 (2nd Dept., 2012)

"To sustain a finding of either civil or criminal contempt based on an alleged violation of a court order it is necessary to establish that a lawful order of the court clearly expressing an unequivocal mandate was in effect," that "the order has been disobeyed," and that the charged party "had knowledge of the court's order" (Matter of Department of Envtl. Protection of City of N.Y. v Department of Envtl. Conservation of State of N.Y., 70 NY2d 233, 240; see Town of Copake v 13 Lackawanna Props., LLC, 73 AD3d 1308, 1309). The same act may be punishable as both a criminal and civil contempt (see Town of Copake v 13 Lackawanna Props., LLC, 73 AD3d at 1309). Civil contempt must be proven by clear and convincing evidence and requires a showing that the rights of a party have been prejudiced (see McCain v Dinkins, 84 NY2d 216, 226; Incorporated Vil. of Plandome Manor v Ioannou, 54 AD3d 365, 366). Such a showing is not needed to prove criminal contempt "since the right of the private parties to the litigation is not the controlling factor" (Matter of Department of Envtl. Protection of City of N.Y. v Department of Envtl. Conservation of State of N.Y., 70 NY2d at 240). "A key distinguishing element between civil and criminal contempt is the degree of willfulness of the subject conduct. To be found guilty of criminal contempt, the contemnor usually must be shown to have violated the order with a higher degree of willfulness than is required in a civil contempt proceeding" (id.; McCain v Dinkins, 84 NY2d at 226; Dalessio v Kressler, 6 AD3d 57, 66). Moreover, criminal contempt must be proven beyond a reasonable doubt (see Muraca v

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