Author: DMG

CPLR § 1001

CPLR § 1001 Necessary joinder of parties

Crummell v Avis Rent A Car Sys., Inc., 2009 NY Slip Op 04022 (App. Div., 2nd, 2009)

The Supreme Court erred in granting that branch of the defendant's
motion which was to dismiss the complaint for failure to state a cause
of action, pursuant to CPLR 3211(a)(7), due to the [*2]plaintiff's
failure to comply with Insurance Law § 3420(a)(2). That provision
governs the right of an injured party who is a stranger to an insurance
contract to maintain a direct action against the tortfeasor's insurer (see Lang v Hanover Ins. Co., 3 NY3d 350,
353-354). It does not apply where, as here, a signatory to a contract
seeks a declaration of his rights with respect to another contracting
party (see CPLR 3001; Lang v Hanover Ins. Co., 3 NY3d 350, 353).

While the Supreme Court correctly concluded that Thomas Pinkerton is a necessary party to this action (see CPLR 1001[a]; cf. Bello v Employees Motor Corp., 240
AD2d 527), under the circumstances presented, the plaintiff should have
been given an opportunity to rectify his failure to join him (see Stevens v Eaton, 267 AD2d 450, 450-451).

The Supreme Court should not have considered, and we do not
consider, the defendant's remaining contention, because the defendant
improperly raised it for the first time in its reply papers in the
Supreme Court (see Luft v Luft, 52 AD3d 479, 480; Medugno v City of Glen Cove, 279 AD2d 510, 511-512).

Mayer's Cider Mill, Inc. v Preferred Mut. Ins. Co., 2009 NY Slip Op 04466 (App. Div., 4th, 2009)

Finally, we reject the contention of Preferred Mutual that the
manufacturer and distributor of the machine in question are necessary
parties to this action, pursuant to CPLR 1001 (a). The issue whether
Preferred Mutual must defend and indemnify plaintiff has no bearing on
any claim by Lansdowne against the manufacturer or the distributor, and
they thus are not affected, "inequitably" or otherwise, by this action (id.).

The bold is mine.

CPLR R. 5015 Relief from judgment or order; Poundage; CPLR § 321

CPLR R. 5015 Relief from judgment or order

CPLR § 5701 Appeals to appellate division from supreme and county courts

CPLR § 321 Attorneys
(a) Appearance in person or by attorney

Kurtzman v Bergstol, 2009 NY Slip Op 03871 (App. Div., 2nd, 2009)

The order dated May 27, 2008, did not decide a motion made on
notice, but merely directed a hearing to aid in the determination of
the appellants' motion. Therefore, no appeal lies as of right from that
order (see CPLR 5701[a][2]). Inasmuch as leave to appeal has not been granted (see
CPLR 5701[c]), and we decline to grant leave to appeal in light of the
fact that the order dated May 27, 2008, was superseded by the order
dated August 1, 2008, the appeal from that order must be dismissed (see Mohler v Nardone, 53 AD3d 600).

The appellants' contention that the judgment should have been
vacated because the court lacked jurisdiction to issue it is without
merit; the sheriff was not required to commence a plenary action to
collect poundage (see Martin v Consolidated Edison Co. of N.Y., 146 Misc 2d 756, 758, affd 177 AD2d 548; Knoll v Knoll,
78 Misc 2d 710, 711), as the party to be charged the poundage already
was a party to the lawsuit, and the enforcement of the money judgment
was conducted within the framework of the predicate action (see Martin v Consolidated Edison Co. of N.Y., 146 Misc 2d at 758).

Pisciotta v Lifestyle Designs, Inc., 2009 NY Slip Op 04040 (App. Div., 2nd, 2009)

On appeal, Lifestyle argues that the plaintiffs failed to "bring . .
. proceedings for entry of a default judgment" within the requisite
one-year period, which should have resulted in the dismissal of their
complaint (see CPLR 3215[c]). Lifestyle also argues that, upon
renewal, its motion to vacate the order, inter alia, directing the
entry of a default judgment should have been granted because it
established a "reasonable excuse" for its failure to oppose the
plaintiffs' motion to strike its answer. Specifically, Lifestyle points
to the "uncontroverted medical testimony" of a skin disorder suffered
by Alex Szulman, the president and sole shareholder of Lifestyle,
which, Lifestyle claims, prevented him from personally participating in
the litigation. These arguments are without merit.

The entry of so much of the order entered October 2, 2003, as
struck Lifestyle's answer was the functional equivalent to Lifestyle
having defaulted in appearing or answering as of that date (see Fappiano v City of New York, 5 AD3d 627, citing Rokina Opt. Co. v Camera King, 63 NY2d 728; see also Jones v Corley, 35 AD3d 381),
and the Supreme Court thus properly directed the entry of a default
judgment against Lifestyle in the same order. The record reveals that
the plaintiffs "[took] proceedings for the entry of a [default]
judgment" (CPLR 3215[c]) by serving and filing a note of issue and
certificate of readiness dated October 17, 2003. The service and filing
of the note of issue and certificate of readiness constituted the
plaintiffs' attempt to schedule the inquest that had also been directed
in the same order. That the Supreme Court failed to schedule an
inquest, possibly due to the pendency of Lifestyle's motion to vacate
that order, is not a circumstance that can be ascribed to any
procedural default or neglect on the part of the plaintiffs. Therefore,
there is no merit to Lifestyle's argument that the plaintiffs failed to
"bring . . . proceedings for entry of a default judgment" within the
requisite one-year period.

Similarly without merit is Lifestyle's argument that Szulman's
skin disorder prevented him from participating in the litigation, thus
providing Lifestyle with a "reasonable excuse" for its failure to
oppose the motion that resulted in the order, inter alia, directing the
entry of a default judgment. Szulman's personal medical disorder does
not excuse the corporation's failure to oppose the motion to strike its
answer.

An order made on default should, in general, not be vacated
pursuant to CPLR 5015(a)(1) unless the movant can show "a reasonable
excuse for failing to oppose the [prior] motion" (Faga v Harrison Cent. School District, 40 AD3d 690,
690). Whether a party seeking relief under CPLR 5015(a)(1) has
demonstrated a reasonable excuse is a matter that is left to the
provident exercise of the discretion of the Supreme Court (see Green Apple Mgt. Corp. v Aronis, 55 AD3d 669). The Supreme Court did not improvidently exercise its discretion in the order now under review.

…

The only explanation Lifestyle proffered to the Supreme Court
and this Court for its nonappearance at the conference is that, at the
time the order, inter alia, directing the entry of a default judgment
was entered, Lifestyle was proceeding "pro se." However, Lifestyle's
purported "pro se" status violates CPLR 321(a), which requires a
corporation to appear by attorney only. Reliance on such a violation
cannot constitute a reasonable excuse for a default (see Jimenez v Brenillee Corp., 48 AD3d 351,
352 ["(a) corporate defendant's failure to comply with CPLR 321
provides no basis for vacating a judgment entered against that
defendant"]; Mail Boxes Etc. USA v Higgins, 281 AD2d 176; cf. Guerre v Trustees of Columbia Univ. in City of N.Y., 300 AD2d 29).

In the absence of any valid explanation for its default,
Lifestyle failed to establish a "reasonable excuse for failing to
oppose the [prior] motion" (Faga v Harrison Cent. School District, 40 AD3d at 690).

The bold is mine.

And one other case that was just interesting enought to get in here, Diamond Truck Leasing Corp. v Cross Country Ins. Brokerage, Inc., 2009 NY Slip Op 03862 (App. Div., 2nd, 2009).

CPLR § 3101(d)


CPLR § 3101(d) Trial Preparation

Ryan v St. Francis Hosp., 2009 NY Slip Op 04045, (App. Div., 2nd, 2009)

The Supreme Court providently exercised its discretion in precluding
the testimony of the plaintiffs' proposed expert on the subject of
whether the defendant Andrew E. Lituchy was the attending physician of
record and in charge of the injured plaintiff's care during the entire
hospitalization on the ground that there were no facts in the record to
support the expert's opinion (see Cassano v Hagstrom, 5 NY2d 643, 646; Martinez v Mullarkey, 41 AD3d 666, 670; Simo v New York City Tr. Auth., 13 AD3d 609, 611).

Under the circumstances, the Supreme Court also providently
exercised its discretion in precluding the testimony of the plaintiffs'
proposed expert as to purported departures from the [*2]standard
of care by certain nonparty physicians. The plaintiffs failed to give
notice prior to trial of the specific subject matter of the expert's
testimony setting forth a different theory of recovery not readily
discernable from the plaintiffs' bill of particulars and the statements
in their CPLR 3101(d) responses (see Durant v Shuren, 33 AD3d 843, 844; Dalrymple v Koka, 2 AD3d 769, 771).

The bold is mine.

CPLR § 3215(f)

CPLR § 3215 Default judgment

Lamb v Moody, 2009 NY Slip Op 04031 (App. DIv., 2nd, 2009)

In support of their motion for leave to enter a default
judgment against the respondent upon his failure to appear or to answer
the complaint, the plaintiffs failed to proffer either an affidavit of
the facts or a complaint verified by a party with personal knowledge of
the facts as required by CPLR 3215(f) (see Peniston v Epstein, 10 AD3d 450; DeVivo v Sparago, 287 AD2d 535, 536; Fiorino v Yung Poon Yung, 281 AD2d 513). Accordingly, the Supreme Court properly denied the motion.

The bold is mine.

CPLR § 2201

CPLR § 2201 Stay

NAMA Holdings, LLC v Greenberg Traurig, LLP, 2009 NY Slip Op 04097 (App. Div., 1st, 2009)

The arbitration ruling denying disqualification of the attorneys at
a preliminary stage of that proceeding does not preclude the
disqualification claim. The doctrine of res judicata does not apply,
absent a final adjudication on the merits (see Clearwater Realty Co. v Hernandez,
256 AD2d 100, 101 [1998]). Nor does the doctrine of collateral estoppel
conclusively bar plaintiff's claim, because the scope of the arbitral
ruling is not entirely clear (see Jeffreys v Griffin, 1 NY3d 34,
39 [2003]). Moreover, the issue in this action is particularly
fact-laden and its resolution should await further factual development.
We note, however, that the burden is on plaintiff, as the opponent of
collateral estoppel, to demonstrate the absence of a full and fair
opportunity to be heard in the arbitration (id.), and plaintiff
failed to carry this burden. The allegations regarding defendants'
obstruction of discovery also are not precluded because the claim in
this action is not to obtain discovery, but to show how the attorneys
allegedly committed misconduct in [*2]obstructing it.

However, the court should have granted a stay pursuant to CPLR
2201 in the interest of judicial economy. There are overlapping issues
and common questions of fact, and the hearings in the arbitration, that
began a year before the commencement of this action, are nearly
complete (see Belopolsky v Renew Data Corp., 41 AD3d 322 [2007]; cf. American Intl. Group, Inc. v Greenberg, 60 AD3d 483
[2009] [finding that resolution of related action would not dispose of
or significantly limit issues before this Court or pose risk of
inconsistent rulings]; Metropolitan Steel Indus., Inc. v Tully Constr. Co., Inc., 55 AD3d 363, 364 [2008] [finding it unlikely that significant judicial economies would be served]).

The bold is mine.

CPLR R. 3211(a)(8) & (e) Jurisdiction; CPLR § 308(4) Nail and Mail

CPLR § 308 Personal service upon a natural person

CPLR R. 3211(a)(8) the court has not jurisdiction of the person of the defendant
(e) Number, time and waiver of objections; motion to plead over


Schwarz v Margie, 2009 NY Slip Op 03890 (App. Div., 2nd, 2009)

The summons with notice in the instant matter purportedly was served
upon the appellant, Thomas Margie, by the "nail and mail" method
pursuant to CPLR 308(4). However, the record demonstrates that the
service was deficient because the plaintiff failed "to show the
existence of even a factual question as to whether the process server
exercised the due diligence necessary to be [*2]permitted to serve someone under CPLR 308(4)" (Leviton v Unger, 56 AD3d 731,
732). Accordingly, the Supreme Court should not have directed a hearing
to determine the validity of service upon the appellant but should have
found the proof of due diligence to be insufficient as a matter of law (id.).
Accordingly, the appellant's motion pursuant to CPLR 308 and CPLR
3211(a)(8), in effect, to dismiss the complaint and any and all cross
claims insofar as asserted against him should have been granted (id.; McSorley v Spear, 50 AD3d 652; Estate of Waterman v Jones, 46 AD3d 63, 66-67; Earle v Valente, 302 AD2d 353, 353-354; Moran v Harting, 212 AD2d 517, 518).

The plaintiff's remaining contentions are without merit, have
been rendered academic in light of our determination, or involve matter
that is dehors the record and not properly before this Court (see Mendoza v Plaza Homes, LLC, 55 AD3d 692, 693).

Reyes v Albertson, 2009 NY Slip Op 04043 (App. Div., 2nd, 2009)

In an action to recover damages for personal injuries, the plaintiff
appeals from an order of the Supreme Court, Orange County (Giacomo,
J.), dated March 24, 2008, which granted the defendant's motion
pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of
personal jurisdiction, and denied his cross motion, inter alia, for an
extension of time to serve the defendant and for an order authorizing
expedient service.

ORDERED that the order is modified, on the law, (1) by deleting
the provision thereof granting the motion and substituting therefor a
provision denying the motion as untimely, and (2) by deleting the
provision thereof denying the cross motion on the merits and
substituting therefor a provision denying the cross motion as academic;
as so modified, the order is affirmed, with costs payable to the
plaintiff.

Pursuant to CPLR 3211(e), the defendant was required to move to
dismiss the complaint for lack of proper service within 60 days
following the service of the answer, unless an extension of time was
warranted on the ground of undue hardship. Contrary to the defendant's
contention, the motion to dismiss the complaint, made approximately 106
days after service of the answer, raising the defense of lack of
personal jurisdiction, was untimely and was not supported by an
adequate showing of undue hardship which prevented the making of the
motion within the requisite statutory period (see e.g. Woleben v Sutaria, 34 AD3d 1295; B.N. Realty Assoc. v Lichtenstein, 21 AD3d 793; State Farm Fire & Cas. Co. v Firmstone, 18 AD3d 900; Worldcom, Inc. v Dialing Loving Care, 269 [*2]AD2d 159; Vandemark v Jaeger, 267 AD2d 672). Accordingly, the jurisdictional objection was waived, and the court should have denied the motion (see Dimond v Verdon, 5 AD3d 718; Thompson v Cuadrado, 277 AD2d 151; Greenpoint Bank v Schiffer, 266 AD2d 262, cert denied 531 US 896; Wade v Byung Yang Kim,
250 AD2d 323). The defendant's contention that the service of the
answer was unauthorized is improperly raised for the first time on
appeal (see e.g. Gallagher v Gallagher, 51 AD3d 718; Dudla v Dudla, 304 AD2d 1009; Orellano v Samples Tire Equip. & Supply Corp., 110 AD2d 757).

The bold is mine.

CPLR R. 3211 motion to dismiss not properly converted to 3212 Motion b/c not on notice

CPLR R. 3211 Motion to dismiss

(c)
Evidence permitted; immediate trial; motion treated as one for summary
judgment. Upon the hearing of a motion made under subdivision (a) or
(b), either party may submit any evidence that could properly be
considered on a motion for summary judgment. Whether or not issue has
been joined, the court, after adequate notice to the parties, may treat
the motion as a motion for summary judgment. The court may, when
appropriate for the expeditious disposition of the controversy, order
immediate trial of the issues raised on the motion.

CPLR R. 3212 Motion for summary judgment

Neurological Servs. of Queens, P.C. v Farmingville Family Med. Care, PLLC, 2009 NY Slip Op 04400 (App. Div., 2nd, 2009)

The Supreme Court erred in converting the motion of the defendant
Vasiliki Kadianakis, D.O., a/k/a Kiki Kadianakis, D.O., pursuant to
CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against
her into one for summary judgment without providing notice to the
parties as set forth in CPLR 3211(c) (see Rovello v Orofino Realty Co., 40 NY2d 633; Bowes v Healy, 40 AD3d 566; Moutafis v Osborne, 18 AD3d 723). None of the recognized exceptions to the notice requirement is applicable here (see Mihlovan v Grozavu, 72 NY2d 506, 508; Bowes v Healy, 40 AD3d at 566; Moutafis v Osborne, 18 AD3d at 723; Shabtai v City of New York, 308 AD2d 532, 533). Thus, this Court will apply the standards applicable to a motion to dismiss pursuant to CPLR 3211.
[*2]

Accepting the facts as alleged
in the complaint as true, and according the plaintiff the benefit of
every possible favorable inference (see Leon v Martinez, 84 NY2d 83), the complaint fails to state a cause of action against the defendant Kadianakis (see
CPLR 3211[a][7]). The complaint fails to set forth any allegations
which, if true, would justify piercing the corporate veil and holding
Kadianakis personally liable in her individual capacity (see Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 141; Millennium Constr., LLC v Loupolover, 44 AD3d 1016, 1016; Matter of Goldman v Chapman, 44 AD3d 938, 939; Levin v Isayeu, 27 AD3d 425; Hyland Meat Co. v Tsagarakis, 202 AD2d 552, 552; cf. Pellarin v Moon Bay Dev. Corp., 29 AD3d 553).

Matter of Town of Geneva v City of Geneva, 2009 NY Slip Op 04483(App. Div., 4th, 2009)

Although respondents/defendants (respondents) moved to dismiss this
hybrid CPLR article 78 proceeding and plenary action against them under
various paragraphs of CPLR 3211 (a) and under CPLR 7804 (f), Supreme
Court in its decision nevertheless addressed the burdens of
petitioner/plaintiff (petitioner) and granted respondents' motion to
dismiss based on the evidence submitted by respondents in support of
their motion. We agree with petitioner that the court erred in
converting respondents' motion to dismiss to one for summary judgment.
The court did not provide "adequate notice to the parties" that it was
doing so (CPLR 3211 [c]), nor did respondents and petitioner otherwise
receive " adequate notice' by expressly seeking summary judgment or
submitting facts and arguments clearly indicating that they were
deliberately charting a summary judgment course' " (Mihlovan v Grozavu, 72 NY2d 506, 508; see Carcone v D'Angelo Ins. Agency, 302 AD2d 963; Pitts v City of Buffalo, 298 AD2d 1003, 1004-
1005).

The bold is mine.

CPLR R. 2104 not applicable to forbearance agreements

CPLR R. 2104 Stipulations

Deutsche Bank Natl. Trust Co. v Williams, 2009 NY Slip Op 04023 (App. Div., 2nd, 2009)

Contrary to the determination of the Supreme Court, a forbearance
agreement does not constitute a settlement of the foreclosure action.
As a result, the provisions of CPLR 2104 regarding stipulations of
settlement have no relevance to the forbearance agreement. Rather, a
mortgagee that enters into a forbearance agreement merely refrains from
immediately exercising the remedies it may have and grants the
mortgagor an extension of time for the repayment of his or her debt (cf. Matter of Delafield 246 Corp. v City of New York, 11 AD3d 268, 272).

Here, the forbearance agreement is clear and unambiguous. As
with any such unambiguous contract, the plaintiff was entitled to the
enforcement of the agreement according to its terms (see Ross v Sherman, 57 AD3d 758; Novelty Crystal Corp. v PSA Institutional Partners, L.P., 49 AD3d 113, 118; Roscar Realty Northeast, Inc. v Jefferson Val. Mall Ltd. Partnership, 38 AD3d 744,
746) and, when Williams defaulted under the terms of that agreement,
the plaintiff was entitled to proceed with the foreclosure action (see Option One Mtge. Corp. v Corman, 39 AD3d 724).

The payments made by Williams under the forbearance agreement
must, however, be considered as part of the referee's calculation of
the amounts owed and credited, as of the date of the foreclosure sale,
in determining the proper disposition of the proceeds of the sale (see RPAPL
1355). Accordingly, we remit the matter to the Supreme Court, Kings
County, for the entry of an appropriate amended judgment that credits
the payments made by Williams in calculating the sum to be awarded to
the plaintiff.

The bold is mine.

CPLR. 3211(a)(1) Documentary Evidence

CPLR R. 3211(a)(1) defense is founded upon documentary evidence

Surace v Commonwealth Land Tit. Ins. Co., 2009 NY Slip Op 04050 (App. Div., 2nd, 2009)

On April 5, 2005, the plaintiffs obtained a mortgage interest in
real property in the principal sum of $360,000. The plaintiffs obtained
title insurance from the defendant. The defendant did not submit the
mortgage document for recording until January 30, 2006. In the interim,
on July 14, 2005, a second mortgage was taken out on the property. This
second mortgage was recorded on August 1, 2005. Thus, the second
mortgage was recorded before the first mortgage held by the plaintiffs,
and became the first lien on the property. The plaintiffs commenced
this action, alleging, inter alia, a breach of the title insurance
policy and the negligent failure to timely record the mortgage.

To prevail on that branch of its motion which was to dismiss
the complaint pursuant to CPLR 3211(a)(1), the defendant was required
to demonstrate that "the documentary evidence utterly refutes
plaintiff's factual allegations, conclusively establishing a defense as
a matter of law" (Goshen v [*2]Mutual Life Ins. Co. of N.Y., 98
NY2d 314, 326). Insofar as the defendant's motion is predicated upon
CPLR 3211(a)(7), the court is required to "accept the facts as alleged
in the complaint as true, accord plaintiffs the benefit of every
possible favorable inference, and determine only whether the facts as
alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88).

The complaint states a valid cause of action alleging a breach
of the title insurance policy. The complaint also states a valid cause
of action alleging negligence, which is independent of the parties'
contract of insurance (see Gem Servs. of N.Y. v United Gen. Tit. Ins. Co., 28 AD3d 516; Cruz v Commonwealth Land Tit. Ins. Co., 157
AD2d 333). Moreover, contrary to the arguments of the defendant, the
documentary evidence failed to refute the plaintiffs' allegations.

Etzion v Etzion, 2009 NY Slip Op 03688 (App. Div., 2nd, 2009)

In order to prevail on that branch of their cross motion which was to
dismiss the complaint pursuant to CPLR 3211(a)(1), the defendants were
required to demonstrate that "the documentary evidence utterly refutes
plaintiff's factual allegations, conclusively establishing a defense as
a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d
314, 326). Insofar as the defendants' cross motion was predicated upon
CPLR 3211(a)(7), the court is required to "accept the facts as alleged
in the complaint as true, accord plaintiffs the benefit of every
possible favorable inference, and determine only whether the facts as
alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88). "Whether the plaintiff can ultimately establish the allegations is not part of the calculus'" (Aberbach v Biomedical Tissue Servs., Ltd., 48 AD3d 716, 717-718, quoting EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19).

CPLR § 5402; CPLR § 5222; CPLR § 5251; Civil Contempt

CPLR § 5402 Filing and status of foreign judgments

CPLR § 5222 Restraining notice

CPLR § 5251 Disobedience of subpoena, restraining notice or order; false swearing; destroying notice of sale

Viacom Outdoor Group, Inc. v McClair, 2009 NY Slip Op 04052 (App. Div., 2nd, 2009)

The nonparty appellant, HSBC Bank USA, National Association (hereinafter HSBC), was served with a restraining notice (see CPLR
5222) relating to a judgment of a court of the State of Arizona dated
May 30, 2006, which was later filed in Kings County pursuant to CPLR
5402, and faced potential contempt sanctions in the event that it
violated the notice by permitting funds to be withdrawn from the
judgment debtor's account (see CPLR 5251; Aspen Indus. v Marine Midland Bank, 52 NY2d 575, 579-580; Nardone v Long Is. Trust Co., 40
AD2d 697). By order to show cause dated January 5, 2007, the judgment
debtor, the defendant Carolyn McClair (hereinafter McClair), moved,
among other things, to vacate the underlying Arizona judgment and for
an order "discharging or staying the [e]nforcement of the [j]udgment in
New York."
[*2]

In an order dated March 23,
2007, the Supreme Court granted McClair's motion solely to the extent
of "stay[ing] enforcement of the Arizona judgment." That order also
provided that "the stay on the release of funds in [the judgment
debtor's] HSBC Bank Account is lifted." We agree with HSBC that this
language, while it may have dissolved the temporary restraining order
contained in the order to show cause dated January 5, 2007, did not
directly address the underlying restraining notice.

Since the March 23, 2007, order did not expressly vacate the
restraining notice, the hesitation exhibited by HSBC when McClair
inquired about the release of funds from her account was understandable
and cannot be deemed contemptuous. Civil contempt sanctions are not
warranted unless it is shown that the alleged contemnor wilfully
violated a clear and unequivocal mandate of the court (see Moore v Davidson, 57 AD3d 862; Geffner v North Shore Univ. Hosp., 57 AD3d 839; City Wide Sewer & Drain Serv. Corp. v Carusone, 39 AD3d 687, 688). No such showing has been made here (see Aspen Indus. v Marine Midland Bank, 52 NY2d 575, 579; see also Nardone v Long Is. Trust Co., 40
AD2d 697 [restraining notice remained valid despite ex parte stay,
which "merely prohibited (the judgment creditor) from gaining actual
possession of the judgment debtor's funds"]). "Any ambiguity in the
Court's mandate should be resolved in favor of the would-be contemnor" (Hae Mook Chung v Maxam Props., LLC, 52 AD3d 423, 423; see Richards v Estate of Kaskel, 169
AD2d 111, 122). Since the order dated March 23, 2007, was unclear, HSBC
cannot be held in contempt and, in any event, HSBC, by all indications,
acted at all relevant times in good faith.

The bold is mine.