Judiciary Law § 753(A)(3)

Union Temple of Brooklyn v Seventeen Dev., LLC, 2018 NY Slip Op 04023 [2d Dept. 2018]

To prevail on a motion to hold a party in contempt pursuant to Judiciary Law § 753(A)(3), the movant must demonstrate 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, (3) the party to be held in contempt had knowledge of the court's order, and (4) the movant was prejudiced by the offending conduct (see El-Dehdan v El-Dehdan, 26 NY3d 19, 29; McCain v Dinkins, 84 NY2d 216, 226; Matter of Savas v Bruen, 154 AD3d 859, 860). Here, the plaintiff established by clear and convincing evidence that Seventeen failed to comply with the order dated May 19, 2015, of which it was aware, and that such conduct prejudiced the plaintiff. Contrary to Seventeen's contention, it was not necessary to show that its disobedience was deliberate or willful (see Town of Huntington v Reuschenberg, 70 AD3d 814, 815; Hinkson v Daughtry-Hinkson, 31 AD3d 608). Once the plaintiff made its prima facie showing, the burden shifted to Seventeen to refute the plaintiff'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 NY3d at 35-36; Matter of Savas v Bruen, 154 AD3d at 860; Lundgren v Lundgren, 127 AD3d 938, 941). Seventeen failed to make such a showing or to raise a factual issue warranting a hearing (see Bais Yoel Ohel Feige v Congregation Yetev Lev D'Satmar of Kiryas Joel, Inc., 78 AD3d 626, 627; Town of Huntington v Reuschenberg, 70 AD3d at 815).