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violated the notice by permitting funds to be withdrawn from the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.
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