Tuesday, November 15, 2016
THE ELEMENTS OF CIVIL CONTEMPT
Dotzler v. Buono, 2016 NY Slip Op 7433 - NY: Appellate Div., 4th Dept. 2016:
"A finding of civil contempt must be supported by four elements: (1) "a lawful order of the court, clearly expressing an unequivocal mandate, was in effect"; (2) "[i]t must appear, with reasonable certainty, that the order has been disobeyed"; (3) "the party to be held in contempt must have had knowledge of the court's order, although it is not necessary that the order actually have been served upon the party"; and (4) "prejudice to the right of a party to the litigation must be demonstrated" (Matter of McCormick v Axelrod, 59 NY2d 574, 583, order amended 60 NY2d 652). The party seeking an order of contempt has the burden of establishing those four elements by clear and convincing evidence (see El-Dehdan v El-Dehdan, 26 NY3d 19, 29; Belkhir v Amrane-Belkhir, 128 AD3d 1382, 1382).
Here, we agree with defendant that plaintiff failed to establish by the requisite clear and convincing evidence that defendant had actual knowledge of the TRO at the time ........ (see Puro v Puro, 39 AD2d 873, 873, affd 33 NY2d 805). We reject plaintiff's contention that defendant's actual knowledge of the TRO is not necessary here because she served the TRO upon defendant's attorney (see CPLR 2103 [b]). "Actual knowledge of a judgment or order is an indispensable element of a contempt proceeding" (Orchard Park Cent. Sch. Dist. v Orchard Park Teachers Assn., 50 AD2d 462, 468, appeal dismissed 38 NY2d 911; see Matter of Howell v Lovell, 103 AD3d 1229, 1230), and the record establishes that defendant did not receive the TRO before ........"