Savas v. Bruen, 2015-06075, Docket No. O-43-13/13A.

• Court: New York Supreme Court Appellate Division
• Citation: 30 N.Y.S.3d 673,139 A.D.3d 736,2016 N.Y. Slip Op. 03511
• Docket Number: 2015-06075, Docket No. O-43-13/13A.
• Parties: In the Matter of Joelle SAVAS, respondent, v. Daniel Joseph BRUEN, appellant.
• Decision Date: 04 May 2016

139 A.D.3d 736
30 N.Y.S.3d 673
2016 N.Y. Slip Op. 03511

In the Matter of Joelle SAVAS, respondent,
v.
Daniel Joseph BRUEN, appellant.

2015-06075, Docket No. O-43-13/13A.

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

May 4, 2016.

30 N.Y.S.3d 674

Arleen Lewis, Blauvelt, NY, for appellant.

Lynn J. Brustein–Kampel, P.C., New City, NY, for respondent.

Jeffrey Schonbrun, New City, NY, attorney for the child.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, BETSY BARROS, and FRANCESCA E. CONNOLLY, JJ.

139 A.D.3d 736

Appeal from an order of the Supreme Court, Rockland County (IDV Part) (Victor J. Alfieri, Jr., J.), dated June 17, 2015. The order granted the petition, in effect, to hold the appellant in civil contempt of court for failure to participate in a batterer's education program and pay the costs thereof and to pay $7,500 in attorney's fees to the attorney for the petitioner in monthly installments of $312.50 in accordance with the terms of an order of protection of that court dated December 17, 2014, and directed that the appellant be incarcerated unless he purged himself of his contempt by attending an enrollment interview for the batterer's education program and paying $937.50 to the petitioner's attorney on or before July 17, 2015.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Rockland County, for a hearing to determine whether the appellant had the financial ability to comply with the order of protection.

“To find a party in civil contempt of court pursuant to Judiciary Law § 753, the applicant must demonstrate, by clear and convincing evidence, (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct” (Matter of McNelis v. Carrington, 116 A.D.3d 858, 859, 983 N.Y.S.2d 438 [internal quotation marks omitted]; see Judiciary Law § 753[A][3] ; El–Dehdan v. El–Dehdan, 26 N.Y.3d 19, 29, 19 N.Y.S.3d 475, 41 N.E.3d 340 ; McCain v. Dinkins, 84 N.Y.2d 216, 226, 616 N.Y.S.2d 335, 639 N.E.2d 1132 ). “Once the movant establishes a knowing...