Opinion
54225/2015
03-20-2019
Jennifer DAYAN, Plaintiff, v. Maurice S. DAYAN, Defendant.
Maria Coffinas, Esq., Attorneys for Plaintiff, 186 Joralemon Street, Brooklyn, NY 11201 Matthew S. Siedner, Esq., Attorney for Defendant, 100 Quentin Roosevelt Boulevard, Suite 501, Garden City, New York 11530
Maria Coffinas, Esq., Attorneys for Plaintiff, 186 Joralemon Street, Brooklyn, NY 11201
Matthew S. Siedner, Esq., Attorney for Defendant, 100 Quentin Roosevelt Boulevard, Suite 501, Garden City, New York 11530
Jeffrey S. Sunshine, J.
Introduction
This Court is called upon to determine if the non payment by the Defendant of a pendente lite counsel fee award of $ 100,000 rises to the level of contempt. This determination must be made in the context of a Defendant husband having the benefit of counsel paid with funds of at least $ 225,000.00 provided by himself and his family. Plaintiff's former counsel has asserted a charging and retaining lien on her file, conceding that the payment of $ 100,000 would secure the release of the file.
The Court issued a Decision and Order dated March 6, 2017 wherein Defendant was directed to make a payment of $ 100,000.00 to Plaintiff's prior counsel pendente lite, within forty-five days of service of notice of entry. Said decision was not appealed and is law of the case. "The doctrine of the law of the case’ is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned" ( Martin v. City of Cohoes , 37 NY2d 162, 165, 332 N.E.2d 867, 371 N.Y.S.2d 687 [Court of Appeals 1975] ; Matter of Chung Li , 165 AD3d 1105, 87 N.Y.S.3d 316 [2d Dept. 2018]. "The doctrine applies only to legal determinations that were necessarily resolved on the merits in [a] prior decision, and to the same questions presented in the same case" ( RPG Consulting, Inc. v. Zormati , 82 AD3d 739, 740, 917 N.Y.S.2d 897 [2d Dept. 2011] ; see Ramanathan v. Aharon , 109 AD3d 529, 530, 970 N.Y.S.2d 574 [2d Dept. 2013] ; Erickson v. Cross Ready Mix, Inc. , 98 AD3d 717, 717, 950 N.Y.S.2d 175 [2d Dept. 2012] ; Matter of Chung Li , 165 AD3d 1105, 87 N.Y.S.3d 316 [2d Dept. 2018] ). It bars reconsideration of issues which were raised and determined against a party or which could have been raised on a prior appeal (see Czernicki v. Lawniczak , 103 AD3d 769, 770, 962 N.Y.S.2d 166 [2d Dept. 2013] ; Moran Enters., Inc. v. Hurst , 96 AD3d 914, 916, 947 N.Y.S.2d 538 [2d Dept. 2012] ; Stone v. Stone , 39 AD3d 534, 535, 831 N.Y.S.2d 728[2d Dept. 2007] ; Matter of Chung Li , 165 AD3d 1105, 87 N.Y.S.3d 316 [2d Dept. 2018].) The Court also issued a subsequent Decision and Order dated November 30, 2017 among other things, denying Defendant's re-argument of the $ 100,000 counsel fee awarded to the Plaintiff.
By Order to Show Cause dated January 17, 2018, Plaintiff sought an adjudication of civil contempt against the Defendant based on the Defendant's failure to comply with and obey the March 6, 2017 Decision and Order the Court issued directing the Defendant to make a payment of $ 100,000.00 to Plaintiff's prior counsel pendente lite within forty five days of service of notice of entry. An evidentiary contempt hearing was held on November 14, 2018. This application until then was held in abeyance due to the fact that Defendant's second counsel was relieved due to a conflict of interest and he retained new counsel. Plaintiff's former counsel was also relieved and asserted a retaining lien on her file. (See: Dayan v. Dayan , 58 Misc 3d 957, 66 N.Y.S.3d 850, 2017 NY)
Plaintiff's Contentions
The Plaintiff testified that the Defendant has not paid, Plaintiff's prior counsel, the counsel fees of $ 100,000 as ordered by the Court on March 6, 2017 and because of the failure to pay, former counsel will not release the Plaintiff's file that contains items and documents needed to proceed for the financial trial. Extensive litigation has ensued on the issue and an evidentiary hearing is presently being held on the lien issues.
At the hearing the following questions and answers were elicited on cross:
"QUESTION: Can you specify what items or documents you're missing that effect this case.
ANSWER: Yes.
QUESTION: Go ahead.
ANSWER: There's a stamp with my name on it.
QUESTION: A what?
ANSWER: A stamp with my name that they used on documents because the company is under my name. And it matches all the checks that were sent out. It has the same. So I can't - - I would like to have that back and so I could show how they were able to use me in the companies. There's also a lot of bank boxes that were sent, about four or five bank boxes that were sent directly to Mr. Butterman's home. He works in his home. It's a home office. So they were one of a kinds. They were never Bates stamped and they were never scanned so I don't have access to those boxes and they were very valuable information in there and some of that information was used but there's a lot more that we were going to use in the future and I don't have them."
There was further testimony regarding the missing items.:
"QUESTION: What was in the box?
ANSWER: The box I gave to Ms. Khan, Debra khan had the stamp and to my recollection- - I don't remember everything that was in it. It was things I collected in the home and we were in the middle of moving so it was a crazy time, had legal documents in it. It had minutes from a meeting that Maurice was in that was very helpful and understanding some things that were going on that's very important for our trial, our financial trial. So there was definitely things in there that I need."
In regards to the minutes of a Delaware proceeding:
"QUESTION: Did you ever- - to your knowledge what efforts were ever taken to require those minutes that you claim were in that box
ANSWER: I went to Delaware to get everything sent to me.
QUESTION: Okay.
ANSWER: And I subpoenaed the company several times
QUESTION: And?
ANSWER: And those were never given to me."
The Plaintiff testified that she was unable to pay her formal counsel since the last court date but did pay her present counsel with money she obtained from selling her engagement ring and wedding band.
The Plaintiff testified that she has been prejudiced because the "stamp" and documents are important to her proving an ownership interest in a family held business controlled by the Defendant's family. The Plaintiff testified that she is seeking to incarcerate the Defendant because the items are important and she is sure he can pay the money owed.
In an extensive decision dated May 27, 2018 this Court relieved Defendant's second attorney due to a conflict of interest. It is clear in that decision Plaintiff is attempting to establish an ownership interest by inter alia documentary proof in Defendant's family business. The structure of which has been called into question by Courts in other states.
Defendant's Contentions
The Defendant testified that he did receive the order from this Court from March 6, 2017 and has not made the required payment.
The Defendant testified that he had ben residing in a private home with his family in Oakhurst, New Jersey for about three years that he once owned. The Defendant also testified that this is a 5 bedroom home and he is not currently paying any rent or utilities, and that there is an additional bedroom for a housekeeper. The Defendant further testified that there are "one or two" housekeepers who work in the house, another person who works outside of the home and a driver that drives the children back and forth during visitation.
"QUESTION: And was that home ever titled in your name?
ANSWER: I believe so.
QUESTION: Okay. And did there come a time where you transferred title to that home?
ANSWER: I believe it was for a day. I'm not sure
QUESTION: Im sorry?
ANSWER: I apologize, I'm not sure. I believe it was for one day but I'm not sure. I don't recall."
Defendant later testified:
"QUESTION: This is the house that you owned at one point; is that correct?
ANSWER: For one day back about ten years ago.
QUESTION: During your marriage to the plaintiff?
ANSWER: Yes"
The Defendant testified that his first attorney was paid between $ 200,000.00 and $ 250,000.000 by the Defendant himself and his brother, the second attorney was paid an unknown amount by the Defendant's brother or father and that his third and present attorney was paid $ 25,000.00 by his brother.
As to his second attorney the following colloquy took place:
"QUESTION: Well, did Mr. Condzal appear with you in this courtroom?
ANSWER: Yes, ma'am
QUESTION: So from that period of time that he did that, did you pay him to do that?
ANSWER: I personally did not pay him and I personally did not see a bill. I don't recall. I don't recall.
QUESTION: Well, did he do it without any charge, is that what your testimony is?
ANSWER: No. I'm saying- - all im saying is I did not pay him and I did not see a bill. I don't recall seeing a bill.
QUESTION: Who paid him to represent you?
ANSWER: Im not sure if my brother or my father. I really don't know. I don't recall.
QUESTION: But somebody did on your behalf, correct?
ANSWER: I would imagine, yes."
Further testimony regarding Defendants third attorney also took place:
ANSWER: My brother did, yes
QUESTION: And what sum of money did your brother pay for your representation?
ANSWER: I don't know for sure. It was 25- - I believe 25,000. I know that amount for sure."
The Defendant testified that he and the children recently traveled to Israel, all expenses paid by the Defendant's sister and her husband, and stayed in two different hotels, one being The King David, and had two separate rooms in each hotel for the Defendant's immediate family.
The Defendant testified that he makes about $ 25,000.00 to $ 40,000.00 and works "all the time". The Defendant testified that " I get e-mails or ‘WeChat’ from China at night to find out things, ask things, communication. But I go to the office during the day and I travel periodically to different retailers."
The Defendant introduced into evidence his 2015 and 2016 income tax return as Defendant's Exhibit B and his 2017 income tax return as Defendant's Exhibit C which reported an income of minus $ 260,908.00 for 2015, minus $ 298,450.00 for 2016 and minus $ 259,350.00 in 2017. The Defendant testified that there was a negative adjusted gross income " because we had a net loss carry forward from years earlier incurred from losses in the business."
"QUESTION: What is the initial carry over loss amount?
ANSWER: $ 407,072.
QUESTION: And what is that a carry over loss from, sir?
ANSWER: From years ago. I don't remember.
QUESTION: Years ago of what, sir? How is it that you have a lose of $ 407,000. That would mean you had a business, correct?
ANSWER: About 10, 11 years ago.
QUESTION: So you're carrying a loss for 10 or 11 years?
ANSWER: Yes
QUESTION: And you continue to carry that loss today, is that your testimony?
ANSWER: That's what I'm reading.
QUESTION: Okay. And that business is it, sir, that you carried a loss for 10 or 11 years?
ANSWER: Roadmaster USA corp., believe
QUESTION: Is that reflected anywhere in that statement one that that is the source of a business loss?
ANSWER: I'm not exactly sure. I have to ask my accountant the particulars."
The Defendant testified that he is unable to pay Plaintiff's prior counsel but did state he tried to borrow money from family and friends but was unable to borrow the money needed to pay Plaintiff's prior counsel.
"QUESTION: So in 2017 what was the amount of actual income; putting aside tax laws how much did you earn in 2017?ANSWER: Approximately $ 40,000.
QUESTION: And did you work for the entire year of 2017?
ANSWER: Yes.
QUESTION: Who do you work for?
ANSWER: Development Properties
QUESTION: What is Development Properties?
ANSWER: Development Properties- - I forgot what the terminology is, but it's how the company that pays. You have to ask the accountant how it works."
Further testimony regarding Development Properties:
"QUESTION: You work for a business?
ANSWER: Correct
QUESTION: Who owns the business?
ANSWER: I believe it's my mother. I'm not sure if it's my father or mother
QUESTION: What is the nature? Explain what you mean you sell things. What exactly do you do?
ANSWER: I go and I show product to places like Christmas Tree Shops or Walmart or Home Depot. I show it to whomever I can to try and see different types of product.
QUESTION: Where do you get these products that you're showing?
ANSWER: China
QUESTION: Who pays for them?
ANSWER: The Company."
The Defendant later testified:
"QUESTION: Now, your testimony is that you work for a company that's owned by either your mother or your father, but you don't know who owns it; is that your testimony?
ANSWER: I don't know today if it's my mother or my father. That is correct"
The Defendant testified that his mother is 70 years old and his father is 77 years old and that the mother does not work at Development Properties but the Father does.
The Defendant further testified:
"QUESTION: Was there ever a time when you did know who owned the company?
ANSWER: At the time there was a day and time that I'm sure I did know who owned the company, but I don't know what company you're talking about. The development property?
QUESTION: Is that the company you work for?
ANSWER: That's the company that pays me, yes.
QUESTION: That's the company that pays you. That's not necessarily the company that your work for; is that correct?
ANSWER: I get paid from Development Properties."
The Defendant testified that he worked for Development Properties in 2018:
QUESTION: In the year 2018 where are you working?
ANSWER: Development Properties
QUESTION: And how much are you earning? The year is almost over. What do you expcet to be your year end earnings for 2018?
ANSWER: Approximately $ 40,000.
QUESTION: Okay. What if anything, is your plan with respect to 2019 and working for Development if you're only making $ 40,000?
ANSWER: So we've come up with product and as I sell product I get commission. So I have the ability to make money. We have interest from retailers but I don't have commitments as of this exact moment. So this is what I've been working towards since I started working. So in 2015 I worked in a separate company which went defunct, went out of business- - didn't go out of business. I left because I couldn't get paid anymore. I didn't do anything from - - for the back half of 2015. In 2016 I started working little by little, getting back in and I've been working to develop product to sell. So we're starting to get interest in the product, making samples and showing to retailers. So based on sales I would get commission.
The Defendant introduced into evidence a purported promissory note between the Defendant and his brother (Defendant' Exhibit A) and the promissory note was dated August 24, 2015 and he claimed was "updated" on July 17, 2017 in the amount of $ 534,992.64. On cross examination he testified:
"QUESTION: Mr. Dayan, you would agree that your signature to this document is not notarized?
ANSWER: Say that again, please.
QUESTION: Would you agree that your signature to this document is not notarized?
ANSWER: Correct, yes.
QUESTION: Nor is it witnessed, correct?
ANSWER: Correct.
QUESTION: And who prepared the document?
ANSWER: My brother
QUESTION: When did he prepare it?
ANSWER: I don't know.
QUESTION: Is your brother an attorney?
ANSWER: No. I don't know if he- - my brother sent it to me I should say.
QUESTION: When did you sign it, sir?
ANSWER: July 17
QUESTION: Of what year?
ANSWER: 2017
QUESTION: The document on the top states date as of August 24, 2015, correct?
ANSWER: Oh, I read the wrong. Oh, yes."
"QUESTION: And this is a complete document that you signed, sir, these four pages?
ANSWER: Yes
QUESTION: Sir, would you agree that in the second paragraph there is a reference to a Schedule A?
ANSWER: Yes
QUESTION: Is there a Schedule A attached to this document?
ANSWER: No."
The Defendant testified that since July 17, 2017 that he used the borrowed money, (that was considered in determining the Defendant's imputed income) to pay for custody, maintenance, other things for the children, counsel fees, car payments for the cars and insurance and assorted fees related to the family and clothing for himself. The Defendant testified that he has not made any payments on the loan.
"QUESTION: Mr. Dayan, what was your understanding of how the Court determined your income?
ANSWER: Based on the loans I was receiving and the debt that I had.
QUESTION: Okay. And in terms of the loans, who were the loans from?
ANSWER: My brother and my father"
Discussion
In the instant action Plaintiff seeks to hold the Defendant in Civil Contempt. "Contempts are neither wholly civil nor altogether criminal. And ‘it [might] not always be easy to classify a particular act as belonging to either one of these two classes. It may partake of the characteristics of both’ It is not the fact of punishment but rather its character and purpose that often serve to distinguish between the two classes of cases. If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court. [I]mprisonment for civil contempt is ordered where the defendant has refused to do an affirmative act required by the provisions of an order which, either in form or substance, was mandatory in its character. Imprisonment in such cases is not inflicted as a punishment, but is intended to be remedial by coercing the defendant to do what he had refused to do. The decree in such cases is that the defendant stand committed unless and until he performs the affirmative act required by the court's order" (see Gompers v. Bucks Stove & Range Co. , 221 U.S. 418, 31 S. Ct. 492, 55 L.Ed. 797 [1911] ; Matter of Rubackin v. Rubackin , 62 AD3d 11, 875 N.Y.S.2d 90 [2009] )
Plaintiffs original papers are seeking to hold the Defendant in civil contempt however, the Plaintiff seeks and discusses criminal contempt in the summation however, the Court will not be considering Criminal contempt as it was not originally requested.
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"To find a party in civil contempt of court, the movant must demonstrate, by clear and convincing evidence, (1) that a lawful order of the court was in effect, clearly expressing an unequivocal mandate, (2) the appearance, with reasonable certainty, that the order was disobeyed, (3) that the party to be held in contempt had knowledge of the court's order, and (4) prejudice to the right of a party to the litigation" (see Matter of Fitzgerald , 144 AD3d 906, 41 N.Y.S.3d 271[2016] ; El-Dehdan v. El-Dehdan , 26 NY3d 19, 29, 19 NYS3d 475 [2015] ; Thimm v. Thimm , 137 AD3d 775, 776, 28 NYS3d 693 [2016] ).
"To satisfy the prejudice element, it is sufficient to allege and prove that the contemnor's actions were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party" (see Matter of Figueroa- Rolon v. Torres , 121 AD3d 684, 993 N.Y.S.2d 348 [2014] ; Astrada v. Archer , 71 AD3d 803, 898 NYS2d 149 [2010] ; Casavecchia v. Mizrahi , 57 AD3d 702, 869 NYS2d 604 [2008] ; Orange County-Poughkeepsie Ltd. Partnership v. Bonte , 37 AD3d 684, 686, 830 NYS2d 571 [2007] ; Yeshiva Tifferes Torah v. Kesher Intl. Trading Corp. , 246 AD2d 538, 667 NYS2d 759 [1998] ).
"[C]ivil contempt is established, regardless of the contemnor's motive, when disobedience of the court's order defeats, impairs, impedes, or prejudices the rights or remedies of a party" ( El-Dehdan v. El-Dehdan , 26 NY3d 19, 41 N.E.3d 340 [2015).
The Plaintiff established by clear and convincing evidence that there was "an unequivocal mandate" that the Defendant pay the interim attorney fee sum of $ 100,000.00 to Plaintiff's prior counsel, that the plaintiff had knowledge of that mandate, that the plaintiff disobeyed that mandate, and that this disobedience prejudiced the defendant ( El-Dehdan v. El-Dehdan , 114 AD3d 4, 16, 978 NYS2d 239 [2013], affd 26 NY3d 19, 19 NYS3d 475, 41 NE3d 340 [2015] ; see Matter of Hughes v. Kameneva , 96 AD3d 845, 846, 946 NYS2d 211 [2012] ). "[T]he plaintiff's failure to show that he exhausted other enforcement remedies before seeking to hold the defendant in contempt does not bar him from obtaining that relief" ( see Cassarino v. Cassarino , 149 AD3d 689, 50 N.Y.S.3d 558 [2017] )
"Once the party moving to hold another party in civil contempt establishes a knowing failure to comply with a clear and unequivocal mandate, the burden shifts to the alleged contemnor to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order" (see Matter of Fitzgerald , 144 AD3d 906, 41 N.Y.S.3d 271[2016] ; Mollah v. Mollah , 136 AD3d 992, 993, 26 NYS3d 298 [2016] ). "Inability to comply with an order is a defense to both civil and criminal contempt" (see Lueker v. Lueker , 166 AD3d 603, 87 N.Y.S.3d 123[2018], v. El-Dehdan , 26 NY3d 19, 35, 19 N.Y.S.3d 475, 41 N.E.3d 340 [2015] ; Matter of Powers v. Powers , 86 NY2d 63, 70, 653 N.E.2d 1154, 629 N.Y.S.2d 984[1995] ; Gomes v. Gomes, 106 AD3d 868, 869, 965 N.Y.S.2d 187[2013] ; Yeager v. Yeager , 38 AD3d 534, 831 N.Y.S.2d 496 [2007] ; Ferraro v. Ferraro , 272 AD2d 510, 512, 708 N.Y.S.2d 438[2002] ).
Although the Defendant argues that he cannot pay the $ 100,000 based on current debt and income it is clear that the Defendant is living a lavish lifestyle. The Defendant concedes to be living in a 5 bedroom home, which he once [he thinks briefly] owned, extravagant vacations, a driver, multiple housekeepers and that he has borrowed hundreds of thousands of dollars from family members and he works for nearly nominal sums of money for either his mother or father with whom he lives. The Court in its Decision dated March 6, 2017 ruled that:
"As such the Court shall impute to the defendant $ 368,948.40 ($ 210,654.60 in money received from family towards expenses paid for the plaintiff and children + $ 158,293.80 in defendant's own expenses according to his statement of net worth) in gross income for the purposes of calculating maintenance and child support. The Court does not impute income to the plaintiff at this juncture based upon her compliance in the discovery process and upon insufficient evidence provided by defendant."
"In determining a parent's child support obligation, a court need not rely upon the parent's own account of his or her finances, but may impute income based on the parent's employment history, future earning capacity, educational background, or money received from friends and relatives" (see Weissbach v. Weissbach , 2019 NY App. Div. LEXIS 850 [2019]; Baumgardner v. Baumgardner , 98 AD3d 929 [2012] ; Matter of Rohme v. Burns , 92 AD3d 946 [2012] ; Matter of Bouie v. Joseph , 91 AD3d 641 [2012] ).
It is extremely significant that this Defendant asserts that he previously worked in his family business and that was the source of his income during the marriage. That he now again works for his family [he is not sure if it is his mother or father] and that this same family gives him "loans". In this Court's prior decision dated March 6, 2017 the Court noted " Defendant contends that he currently has ‘no salary’ and that he pays for travel ‘with advancements from [his] father.’ He does not dispute traveling for ‘business,’ but contends that he is ‘living out of a suitcase, and trying to put together deals and contracts for which [he] will eventually reap commission income.’ Defendant admits he has ‘resumed the relationship with [his father] but not on a salary basis’ " Additionally in that decision on reargument dated November 30, 2017 the courted noted "Defendant disputes plaintiff's claim that he was employed at ‘[A.S.].’ he asserts that ‘in order to secure an educational loan for my daughters in August, 2016, I did submit an application claiming I was employed by A.S. at two hundred thousand dollars ($ 200,000.00) annually- and this was based on discussions between my father and I and my understanding was that he would put me on the payroll. However, our arrangements changed and I remained an independent contractor. I anticipate receiving commissions in the future as an independent contractor- which to date nave not materialized.’ He claims that he was working for a different company at that time for the same salary ($ 200,000.00)" and "He attempts to explain away loans allegedly from Synagogues and a representation of income on a loan application as income from his father that never materialized"
Certainly the Court cannot ignore that Defendant's ability to have paid his own counsel and receive his file and the Plaintiff does not have access to her file as proof that Defendant's acts does impede, impair and prejudice her. It's effect denies her of her ability to prove her claim.
DRL 237 (a)(6) provides "exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding". The purpose of a pendent lite counsel fee has been described as interim counsel fees are awarded to level the playing field and "prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation" ( Gober v. Gober, 282 AD2d 392, 393 [1 Dept., 2001], quoting O'Shea v. O'Shea , 93 NY2d 187,193 [1999] ; see also Prichep v. Prichep , 52 AD3d 61, 65 [2 Dept., 2008] ). Here the defendant's ability to continue to pay hundreds of thousands of dollars for legal counsel, supplied by the very family he previously worked for created a totally uneven playing field. This imbalance is even greater when the nonpayment results in a retaining lien being placed on one's own file.
This Court must determine if the failure to pay court ordered counsel fees pendente lite rises to the level of contempt of court that unless purged should result in the incarceration or fining of the defendant.
While at first glance it may appear that the drastic remedy of contempt should be reserved for the nonpayment of child support, maintenance or interference in a custodial relationship with a child, one must look at the application before the Court in the context of the severe prejudice imposed on the plaintiff and the concomitant denial of access to justice that would ensue if the counsel fee award was not paid.
The Defendant appears to have unfettered access to resources to pay counsel fees and in fact paid his first attorney $ 200,000- $ 275,000, his second attorney an unknown amount as he did not personally pay him and the third attorney was paid at least $ 25,000 by a family member.
Plaintiff's former counsel who already has a judgment entered for the amount due and owning against defendant and who has represented that even though he is owed more monies (which is the subject of a retaining lien hearing) has represented that the payment of the $ 100,000.00 would satisfy a common law retaining lien placed on the file.
Thus, the prejudice to allowing defendant to continue to litigate the instant matter with resources while at the same time plaintiff cannot even have access to her file warrants a finding of contempt.
The Court does not believe the defendant's contention that he does not have the ability to pay the award. With the assistance of his father and brother he reports a long term loss, no longer receives income that was the income during the marriage, relies on support via loans with promissory notes which are at best suspect and not credible.(see Lueker v. Lueker , 166 AD3d 603, 87 N.Y.S.3d 123[2018] ) Under the circumstances, the plaintiff is not even sure who owns the business he allegedly "works for". The imputation of income finding cannot be relitigated in the context of the inability to pay. It would in effect give the defendant a second bite of the proverbial apple.
Conclusion
The movant has established by clear and convincing evidence (1) that a lawful order of the court was in effect, clearly expressing an unequivocal mandate, (2) the appearance, with reasonable certainty, that the order was disobeyed, (3) that the party to be held in contempt had knowledge of the court's order, and (4) prejudice to the right of a party to a litigation. (see Matter of Fitzgerald , 144 AD3d 906, 41 N.Y.S.3d 271[2016] ; El-Dehdan v. El-Dehdan , 26 NY3d 19, 29, 19 NYS3d 475 [2015] ; Thimm v. Thimm , 137 AD3d 775, 776, 28 NYS3d 693 [2016] ).]. The party seeking a finding of civil contempt must prove these elements by clear and convincing evidence (See: El-Dehdan v. El-Dehdan , 26 NY3d 19, 29[2015] ). The Plaintiff has met her burden. Prejudice is shown where the party's actions "were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party" (see Matter of Figueroa- Rolon v. Torres , 121 AD3d 684, 993 N.Y.S.2d 348 [2014] ; Astrada v. Archer , 71 AD3d 803, 898 NYS2d 149 [2010] ; Casavecchia v. Mizrahi , 57 AD3d 702, 869 NYS2d 604 [2008] ; "It is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such a disobedience defeats, impairs, impedes or prejudices the rights or remedies of a party" (See: El-Dehdan v. El-Dehdan , 26 NY3d 19, 29[2015] ).
The failure to pay the counsel fee ordered results in a "right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced" ( Judiciary law 753[A] ).As recognized by the Court of Appeals in O'Shea v. O'Shea , 93 NY2d 187, 190, 711 NE2d 193, 689 NYS2d 8 [Court of Appeals 1999], and quoted by the Second Department Appellate Division in Prichep v. Prichep , 52 AD3d 61, 858 N.Y.S.2d 667 [2 Dept., 2008] the major purpose of DRL 237 "is designed to redress the economic disparity between the monied spouse and the non-monied spouse. Recognizing that the financial strength of matrimonial litigants is often unequal—working most typically against the wife—the Legislature invested Trial Judges with the discretion to make the more affluent spouse pay for legal expenses of the needier one. The courts are to see to it that the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant's wallet." The major purpose of DRL 237 would be obviated if Defendant's conduct was condoned by the Courts.
The Court rejects as improper Defendant's attempts in the summation to expand the record and his counsel's attempt to testify as to what he observed which dehors the record.
Plaintiff shall settle a formal order on notice to Defendant's counsel adjudging the Defendant in contempt and setting the matter down for purge. To purge the Defendant shall pay to the Plaintiff's counsel in the sum of $ 100,000 within 30 days of service of said order with notice of entry. In said order the Court will fix a date for purge and or imposition of punishment.