Commercial Division Blog

Posted: December 6, 2018 / Categories Commercial, Contempt

Movant Need Not Prove Willful and Contumacious Conduct to Prevail on Civil Contempt Motion

On December 5, 2018, the Second Department issued a decision in Palmieri v. Town of Babylon, 2018 NY Slip Op. 08317, holding that a movant was not required to prove willful and contumacious conduct in order to prevail on a motion for civil contempt, explaining:

As an initial matter, the Supreme Court should not have required the plaintiff to prove willful and contumacious conduct on the part of the Town. In order to sustain a finding of civil contempt, 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 disobedience defeats, impairs, impedes or prejudices the rights of a party.

In order to adjudicate a party in civil contempt, a court must find: (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the party against whom contempt is sought disobeyed the order, (3) that the party who disobeyed the order had knowledge of its terms, and (4) that the movant was prejudiced by the offending conduct. The party seeking a finding of civil contempt must prove these elements by clear and convincing evidence.

Here, the plaintiff established by clear and convincing evidence that the so-ordered stipulation clearly expressed an unequivocal mandate to construct a fence at the Southern end of South Little East Neck Road extending across the entire width of the Town's property at that location, that the Town had knowledge of the stipulation and nevertheless disobeyed it, and that the plaintiff was prejudiced by the offending conduct.

In opposition, the Town failed to refute the plaintiff's showing or to offer evidence of a defense such as an inability to comply with the order. The Town, which offered no witnesses at the hearing, failed to establish that DEC approval is required to comply with the stipulation. The Town's permit application for the construction of a fence extending into Great South Bay is entirely different from the fence contemplated under the parties' stipulation, and the Town failed to establish that any regulation prevents it from constructing the fence it promised to erect in 2004, approximately 14 years ago. Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was to hold the Town in civil contempt for failing to comply with the stipulation, as well as that branch of the plaintiff's motion which was for an award of costs and attorney's fees incurred in connection with bringing the motion.

(Internal quotations and citations omitted).

No matter who you are (even a municipal government) or what kind of litigation you are involved in, you must obey the court's orders. Contact Schlam Stone & Dolan partner John Lundin at if you or a client have have been accused of violating a court order.