GIORGINI III v. GOLDFIELD (2005)

Supreme Court, Appellate Division, Second Department, New York.

Gino L. GIORGINI III, respondent, v. Jon GOLDFIELD, etc., et al., appellants.

Decided: October 31, 2005

SONDRA MILLER, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, and JOSEPH COVELLO, JJ. Leeds, Morelli & Brown, P.C., Carle Place, N.Y. (Rick Ostrove of counsel), for appellants. Gino L. Giorgini III, P.C., Deer Park, N.Y., respondent pro se.

In an action, inter alia, to recover damages for fraud and conversion of certain insurance commissions, the defendants appeal from an order of the Supreme Court, Suffolk County (Molia, J.), dated March 8, 2004, which denied their motion to adjudicate the plaintiff in civil and criminal contempt.

ORDERED that the order is affirmed, with costs.

 To succeed on a motion to punish for civil contempt, the moving party must show that the alleged contemnor violated a clear and unequivocal court order and that the violation prejudiced a right of a party to the litigation (see Judiciary Law § 753[A][3];  McCain v. Dinkins, 84 N.Y.2d 216, 616 N.Y.S.2d 335, 639 N.E.2d 1132;  Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 466 N.Y.S.2d 279, 453 N.E.2d 508;  Matter of CBS Rubbish Removal v. Town of Babylon Sanitation Commn., 249 A.D.2d 541, 671 N.Y.S.2d 354).   The imposition of punishment for criminal contempt similarly requires a showing that the alleged contemnor violated a clear and unequivocal court order (see Matter of Department of Envtl. Protection of City of N.Y. v. Department of Envtl. Conservation of State of N.Y., 70 N.Y.2d 233, 240, 519 N.Y.S.2d 539, 513 N.E.2d 706;  Matter of McCormick v. Axelrod, supra;  CBS Rubbish Removal v. Town of Babylon Sanitation Commn., supra ).   Inasmuch as the defendants failed to demonstrate that the plaintiff violated a prior order of the court, the Supreme Court properly denied the defendants' motion to adjudicate the plaintiff in civil and criminal contempt.

The defendants' remaining contentions are without merit.