WHEELS AMERICA NEW YORK LTD v. MONTALVO

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

WHEELS AMERICA NEW YORK, LTD., appellant-respondent, v. Felix MONTALVO, et al., respondents-appellants.

Decided: April 29, 2008

REINALDO E. RIVERA, J.P., ROBERT A. SPOLZINO, MARK C. DILLON, and RUTH C. BALKIN, JJ. Andrew Presberg, P.C., Islandia, N.Y. (Kevin J. Foreman of counsel), for appellant-respondent. David M. Lira, Garden City, N.Y., for respondents-appellants.

In an action, inter alia, for a permanent injunction based on an alleged breach of a covenant not to compete contained in certain employment agreements, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Jones, J.), dated June 22, 2007, as denied that branch of its motion which was to hold the defendants in civil and criminal contempt for failure to comply with a prior order dated December 14, 2006, and the defendants cross-appeal from the same order.

ORDERED that the cross appeal is dismissed as withdrawn;  and it is further,

ORDERED that the order is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the defendants.

 To prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with the contempt violated a clear and unequivocal mandate of the court, thereby prejudicing the movant's rights (see Judiciary Law § 753[A][3];  Galanos v. Galanos, 46 A.D.3d 507, 508, 846 N.Y.S.2d 654;  Riverside Capital Advisers, Inc. v. First Secured Capital Corp., 43 A.D.3d 1023, 1024, 842 N.Y.S.2d 491;  Biggio v. Biggio, 41 A.D.3d 753, 753-754, 839 N.Y.S.2d 527;  Giano v. Ioannou, 41 A.D.3d 427, 835 N.Y.S.2d 915;  Rupp-Elmasri v. Elmasri, 305 A.D.2d 394, 395, 758 N.Y.S.2d 524).   The movant “ ‘bears the burden of proving contempt by clear and convincing evidence’ ” (Galanos v. Galanos, 46 A.D.3d at 508, 846 N.Y.S.2d 654, quoting Dankner v. Steefel, 41 A.D.3d 526, 528, 838 N.Y.S.2d 601;  see Riverside Capital Advisers, Inc. v. First Secured Capital Corp., 43 A.D.3d at 1024, 842 N.Y.S.2d 491;  Lutz v. Goldstone, 42 A.D.3d 561, 563, 840 N.Y.S.2d 620;  Biggio v. Biggio, 41 A.D.3d at 754, 839 N.Y.S.2d 527).   The imposition of punishment for criminal contempt similarly requires a showing that the alleged contemnor violated a clear and unequivocal court mandate (see Judiciary Law § 750[A][3];  City Wide Sewer & Drain Serv. Corp. v. Carusone, 39 A.D.3d 687, 688, 834 N.Y.S.2d 283;  Gerelli Ins. Agency, Inc. v. Gerelli, 23 A.D.3d 341, 806 N.Y.S.2d 71;  Giorgini v. Goldfield, 22 A.D.3d 800, 803 N.Y.S.2d 155;  City of Poughkeepsie v. Hetey, 121 A.D.2d 496, 497, 503 N.Y.S.2d 589).   An essential element of criminal contempt is willful disobedience (see Dalessio v. Kressler, 6 A.D.3d 57, 66, 773 N.Y.S.2d 434).   Here, with regard to that branch of the plaintiff's motion which was to hold the defendants in civil and criminal contempt, the plaintiff failed to meet its burden (see Giorgini v. Goldfield, 22 A.D.3d 800, 803 N.Y.S.2d 155;   Rupp-Elmasri v. Elmasri, 305 A.D.2d at 395, 758 N.Y.S.2d 524).   Accordingly, the Supreme Court properly denied that branch of its motion which was to hold the defendants in civil and criminal contempt for failure to comply with a prior court order.

 We do not reach the plaintiff's contention concerning that branch of its motion which was for summary judgment on the issue of liability, as that branch of the motion was not addressed by the Supreme Court.   Thus, it remains pending and undecided (see Hawkins-Bond v. Konefsky, 48 A.D.3d 417, 849 N.Y.S.2d 802;  Katz v. Katz, 68 A.D.2d 536, 542-543, 418 N.Y.S.2d 99).

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