Opinion
2013-03-12
Inez SIMENS, etc., et al., Plaintiffs–Respondents, v. Charles DARWISH, etc., et al., Defendants–Appellants. Neal Fellenbaum, Temporary Receiver–Respondent.
Rosenfeld & Kaplan, LLP, New York (Steven M. Kaplan of counsel), for appellants. Scott F. Guardino, PLLC, Albertson (Scott F. Guardino of counsel), for Inez Simens, respondents.
Rosenfeld & Kaplan, LLP, New York (Steven M. Kaplan of counsel), for appellants. Scott F. Guardino, PLLC, Albertson (Scott F. Guardino of counsel), for Inez Simens, respondents.
Zegen & Fellenbaum, New York (Neal Fellenbaum respondent pro se).
SWEENY, J.P., MOSKOWITZ, ABDUS–SALAAM, ROMÁN, FEINMAN, JJ.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered November 7, 2011, which, to the extent appealed from, granted the motions of plaintiffs and the temporary receiver to the extent of holding defendant Charles Darwish (defendant) in civil and criminal contempt, and ordering him to pay $541,607.43 in civil fines and $500 in criminal fines, unanimously modified, on the law, to vacate the finding of criminal contempt and the $500 fine, and otherwise affirmed, without costs.
The court did not give defendant sufficient notice that he was in danger of being held in criminal contempt ( see Beninati v. Beninati, 181 A.D.2d 434, 434, 580 N.Y.S.2d 346 [1st Dept. 1992], lv. dismissed80 N.Y.2d 924, 589 N.Y.S.2d 310, 602 N.E.2d 1126 [1992] ). Indeed, the court stated at the beginning of the evidentiary hearing that the hearing was to involve civil contempt only. Accordingly, the finding of criminal contempt, and the corresponding fine, must be vacated.
The court, however, correctly held defendant in civil contempt, as there was clear and convincing evidence that defendant knowingly disobeyed clear and unequivocal orders of the court, causing prejudice to plaintiffs and the temporary receiver ( Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 582–583, 466 N.Y.S.2d 279, 453 N.E.2d 508 [1983] ). Defendant's argument that the court, in finding him in contempt, could not consider its own record, which included admissions by defendant that he did, in fact, commit various acts that were the subject of the contempt motions, is unavailing and unsupported by any relevant or controlling legal authority. We have considered defendant's remaining contentions and find them unavailing.