ANTHONY PARTNERS LLC v. MICI (2026)

Order, Supreme Court, Bronx County (Erik L. Gray, J.), entered on or about October 18, 2024, which granted plaintiff's motion to hold defendants in civil and criminal contempt for violating a temporary restraining order, unanimously affirmed, with costs.  Appeal from order, same court and Justice, entered on or about September 25, 2024, which granted plaintiff's motion for a declaratory judgment, an assessment of damages, and a preliminary injunction to the extent of issuing the preliminary injunction, unanimously dismissed, without costs, as abandoned.

By order entered on or about August 21, 2024, Supreme Court (Ben R. Barbato, J.) issued a temporary restraining order prohibiting defendants, pending a hearing, from “interfering with and/or removing” a sidewalk shed that plaintiff had installed at the front of the parties’ properties.  The court directed its order to be served on defendants by “overnight mail” at two addresses in the Bronx.  An affidavit of service indicates that on August 22, 2024, the order was sent to those addresses, “enclosed in properly addressed, Federal Express standard overnight envelopes” and “deposited in an official Federal Express depository.”  Plaintiff's counsel also emailed a copy of the order to defendant Aleksander Mici. Mici concedes that he dismantled the sidewalk shed on August 24, 2024.

Supreme Court providently exercised its discretion in finding defendants in civil and criminal contempt of the August 21, 2024 order.  The record shows that defendants were aware of the temporary restraining order, and that Mici unequivocally and willfully disobeyed it (see Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 583, 466 N.Y.S.2d 279, 453 N.E.2d 508 [1983], amended 60 N.Y.2d 652, 467 N.Y.S.2d 571, 454 N.E.2d 1314 [1983];  Bayamon Steel Processors, Inc. v. Platt, 191 A.D.2d 249, 249, 595 N.Y.S.2d 8 [1st Dept. 1993]).  Additionally, defendants’ intentional conduct resulted in prejudice to plaintiff (see Bayamon Steel Processors, Inc., 191 A.D.2d at 249, 595 N.Y.S.2d 8).

We reject defendants’ argument that Mici did not know about the temporary restraining order when he dismantled the sidewalk shed.  The record shows that plaintiff properly served the order on August 22, 2024 by overnight mail, in accordance with Supreme Court's August 21, 2024 order, and we decline to disturb the court's finding of proper service (see Kozel v. Kozel, 161 A.D.3d 699, 700, 78 N.Y.S.3d 317 [1st Dept. 2018], lv dismissed 32 N.Y.3d 1089, 90 N.Y.S.3d 636, 114 N.E.3d 1089 [2018];  Arrufat v. Bhikhi, 101 A.D.3d 441, 442, 954 N.Y.S.2d 538 [1st Dept. 2012]).  We also decline to consider evidence submitted by defendants purportedly showing that the overnight mail was not delivered to them, as that evidence is outside the record (see Becker v. City of New York, 249 A.D.2d 96, 98, 671 N.Y.S.2d 88 [1st Dept. 1998]).  In any event, Mici had actual knowledge of the temporary restraining order, as plaintiff's counsel emailed it to him (see Matter of McCormick, 59 N.Y.2d at 583, 466 N.Y.S.2d 279, 453 N.E.2d 508).

Defendants do not address the merits of the preliminary injunction imposed by the September 2024 order.  Therefore, defendants’ appeal from that order is deemed abandoned (see De Luca v. De Luca, 241 A.D.3d 1146, 1149, 242 N.Y.S.3d 9 [1st Dept. 2025]).

We have considered defendants’ remaining contentions and find them unavailing.