IN RE: Gennadiy DIKOVSKIY (2025)

Order, Supreme Court, New York County (Debra A. James, J.), entered on or about August 25, 2023, which, to the extent appealed from as limited by the briefs, denied petitioner's motion for an order adjudicating respondents New York City Board of Education and Carmen Farina (together, the Board of Education) in contempt of an order and judgment of the same court (Alice Schlesinger, J.), dated August 25, 2016, unanimously affirmed, without costs.

Respondents waived the protections of Judiciary Law § 756 by contesting the application on the merits (see Matter of Rappaport, 58 N.Y.2d 725, 726, 458 N.Y.S.2d 911, 444 N.E.2d 1330 [1982]).

As to the merits, Supreme Court providently exercised its discretion in denying the petition to find the Board of Education in contempt, as petitioner failed to establish by clear and convincing evidence that the Board of Education disobeyed an unequivocal mandate of the court (see El–Dehdan v. El–Dehdan, 26 N.Y.3d 19, 29, 19 N.Y.S.3d 475, 41 N.E.3d 340 [2015];  Matter of Britt v. City of New York, 160 A.D.3d 524, 524–525, 76 N.Y.S.3d 12 [1st Dept. 2018]).  The petition sought petitioner's reinstatement “with full back pay and benefits ․ retroactive to the date of his termination,” and Supreme Court granted the petition.  However, the petition did not specifically seek lost per session compensation or attorneys’ fees, and it is not settled law whether lost per session compensation constitutes back pay.  Furthermore, petitioner does not appear to have sought per session compensation or attorneys’ fees during the prosecution of the petition, and the court's order granting the petition did not specifically order that relief.