Segismundo v. Raynaud

• Citation: 2019 NY Slip Op 31465 (U)
• Decision Date: 20 May 2019
• Docket Number: Index No. 516586/2017
• Parties: FRANCES KAYLA SEGISMUNDO, Plaintiff, v. HERBY RAYNAUD and BERNIER LEGAL, LLC Defendant(s).
• Court: United States State Supreme Court (New York)

2019 NY Slip Op 31465(U)

FRANCES KAYLA SEGISMUNDO, Plaintiff,
v.
HERBY RAYNAUD and BERNIER LEGAL, LLC Defendant(s).

Index No. 516586/2017

New York Supreme Court

RECEIVED: May 24, 2019
FILED: May 22, 2019
May 20, 2019

NYSCEF DOC. NO. 58

At an IAS Term, Part 81 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 20^th day of May, 2019.

PRESENT: HON. CARL J. LANDICINO, Justice.

DECISION AND ORDER
On Default
(Contempt After Hearing)

Upon the foregoing papers and as indicated by this determination, the application to hold the Defendant Bernier Legal, LLC (hereinafter "BL") in civil contempt is granted.

The Court finds, as set forth herein, that the Defendant BL has failed to obey the Judgment and Order of this Court dated December 6, 2018 (entered on December 10, 2018) by failing to release the sum of $27,000.00 (from its escrow account) to Counsel to Plaintiff, Frances Kayla Segismundo (the "Plaintiff"), for the sole benefit of Plaintiff and subject to her direction in relation to BL's role as escrowee in relation to a Contract of Sale concerning a cooperative apartment between Plaintiff (as Purchaser) and Defendant Raynaud (as Seller).

By Notice of Motion dated January 28, 2019, the Plaintiff moved (motion sequence # 2) for an Order providing for the following: (1) a Civil Contempt Order pursuant to Judiciary Law §753 as against the Defendant BL for allegedly failing to comply with the Court's Judgment and Order dated December 6, 2018; (2) a Criminal Contempt Order pursuant to Judiciary Law §750, as against the

Page 2

Defendant BL for allegedly failing to comply with the Court's Judgment and Order dated December 6, 2018; and (3) a fine, costs and attorneys fees relating to thereto.

This Court conducted a hearing on April 25, 2019, at which time and appointed place both Defendants failed to appear, despite proper service upon them pursuant to this Court's Order dated March 20, 2019. Attempts were made by telephone to contact Defendant BL but no response was obtained and Defendants were accordingly found to be in default.

"In order to sustain a finding of civil contempt under Judiciary Law § 753 based on a violation of a court order, it is necessary to establish by clear and convincing evidence that a lawful court order clearly expressing an unequivocal mandate was in effect, that the person alleged to have violated the order had actual knowledge of its terms, and that the violation has defeated, impaired, impeded, or prejudiced the rights of a party (see Schwartz v. Schwartz, 79 A.D.3d 1006, 1009, 913 N.Y.S.2d 313; Dankner v. Steefel, 41 A.D.3d 526, 527-528, 838 N.Y.S.2d 601; Hinkson v. Daughtry-Hinkson, 31 A.D.3d 608, 819 N.Y.S.2d 535)." Manning v. Manning, 82 A.D.3d 1057, 1058, 920 N.Y.S.2d 126, 127 [2^nd Dept, 2011]. Contempt may be warranted where the record demonstrates 'that resort to other, less drastic enforcement mechanisms [has] been exhausted or would be ineffectual.'" Keller v. Keller, 126 A.D.3d 940, 941, 6 N.Y.S.3d 126, 127 [2^nd Dept, 2015], quoting Capurso v. Capurso, 61 A.D.3d 913, 878 N.Y.S.2d 754 [2^nd Dept, 2009].

Based upon the evidence submitted, this Court finds that Plaintiff has met her burden in support of her motion for civil contempt by clear and convincing evidence. See Judiciary Law §753(A); see also El Dehdan v....