Casavecchia v. Mizrahi

• Decision Date: 16 December 2008
• Docket Number: 2007-09085.,2007-09224.
• Citation: 2008 NY Slip Op 09938,57 A.D.3d 702,869 N.Y.S.2d 604
• Parties: JOSEPH CASAVECCHIA, SR., Respondent, v. WILLIAM W. MIZRAHI et al., Appellants.
• Court: New York Supreme Court — Appellate Division

57 A.D.3d 702

869 N.Y.S.2d 604

2008 NY Slip Op 09938

JOSEPH CASAVECCHIA, SR., Respondent, v. WILLIAM W. MIZRAHI et al., Appellants.

2007-09085.

2007-09224.

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

December 16, 2008.

In an action, inter alia, to recover damages for conversion and for an injunction compelling the defendants William W. Mizrahi and Hills of Heartland, LLC, to make certain distributions to the members of Hills of Heartland, LLC, the defendants William W. Mizrahi, Hills of Heartland, LLC, and Casa Mason Corp. appeal (1) from an order of the Supreme Court, Nassau County (Warshawsky, J.), entered September 14, 2007, which, among other things, granted that branch of the plaintiff's motion which was to hold the defendant William W. Mizrahi in civil and criminal contempt for failing to obey three earlier court orders and (2), as limited by their brief, from stated portions of an order of the same court dated October 2, 2007, which, upon renewal and reargument, inter alia, adhered to so much of the original determination in the order entered September 14, 2007, as granted that branch of the plaintiff's motion which was to hold the defendant William W. Mizrahi in civil and criminal contempt.

Ordered that the appeals by the defendants Hills of Heartland, LLC, and Casa Mason Corp. are dismissed, as those defendants are not aggrieved by the orders appealed from (see CPLR 5511); and it is further,

Ordered that the appeal by the defendant William W. Mizrahi from the order entered September 14, 2007 is dismissed as that order was superseded by the order dated October 2, 2007, made upon renewal and reargument; and it is further,

Ordered that the order dated October 2, 2007 is affirmed insofar as appealed from by the defendant William W. Mizrahi; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

To sustain a finding of civil contempt, a court must find that the alleged contemnor violated a lawful order of the court, clearly expressing an unequivocal mandate, of which that party had knowledge, and that as a result of the violation a right of a party to the litigation was prejudiced (see Judiciary Law § 753 [A] [3]; McCain v Dinkins, 84 NY2d 216, 226 [1994]; Kalish v Lindsay, 47 AD3d 889 [2008]; Giano v Ioannou, 41 AD3d 427 [2007]). "[I]t is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such...