Benjamin v. Yeroushalmi

Opinion

Benjamin v Yeroushalmi

2026 NY Slip Op 05071

August 26, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Jim Benjamin, et al., respondents,

v

Moussa Yeroushalmi, et al., defendants; Robert Kahen, nonparty-appellant.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 26, 2026

2023-04690, 2023-04713, (Index No. 3563/14)

Colleen D. Duffy, J.P.

William G. Ford

Laurence L. Love

Donna-Marie E. Golia, JJ.

Rosenberg Calica Birney Liebman & Ross LLP, Garden City, NY (Edward M. Ross and Jessica Lynch of counsel), for nonparty-appellant.

Jaspan Schlesinger Narendran LLP, Garden City, NY (Gayle S. Gerson and Petr Moskalev of counsel), for respondents.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for breach of fiduciary duty and unjust enrichment, nonparty Robert Kahen appeals from (1) an amended order of the Supreme Court, Nassau County (Sharon M.J. Gianelli, J.), entered March 3, 2023, and (2) a judgment of the same court entered March 30, 2023. The amended order, after a hearing, granted those branches of the plaintiffs' motion which were pursuant to Judiciary Law § 753(A) to hold nonparty Robert Kahen in civil contempt and pursuant to Judiciary Law § 773 for an award of attorney's fees and expenses, and imposed a civil contempt fine in the sum of $250 upon nonparty Robert Kahen. The judgment, upon the amended order, is in favor of the plaintiffs and against nonparty Robert Kahen in the principal sum of $65,338.12.

ORDERED that the appeal from the amended order is dismissed; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The background facts relating to this action are set forth in the decisions and orders of this Court on prior appeals (see Benjamin v Yeroushalmi, 212 AD3d 758; Benjamin v Yeroushalmi, 178 AD3d 650). As relevant to this appeal, by order dated February 16, 2022 (hereinafter the February 2022 order), the Supreme Court, inter alia, granted that branch of the plaintiffs' motion which was to compel nonparty Robert Kahen to comply with a nonparty subpoena for documents related to the underlying dispute in this action to the extent of directing Kahen to produce certain specified documents within 30 days of the date of the February 2022 order. In May 2022, the plaintiffs moved, among other things, pursuant to Judiciary Law § 753(A) to hold Kahen in civil contempt and pursuant to Judiciary Law § 773 for an award of attorney's fees and expenses, alleging that Kahen failed to comply with the directives of the February 2022 order. Kahen opposed the motion. Following an evidentiary hearing, the court, in an amended order entered March 3, 2023 (hereinafter the March 2023 order), granted those branches of the plaintiffs' motion, imposed a civil [*2]contempt fine in the sum of $250 upon Kahen, and directed the plaintiffs' attorney to submit an affirmation of legal services in connection with the request for attorney's fees and expenses. Following the parties' submissions on the request for attorney's fees and expenses, the court entered a judgment on March 30, 2023, in favor of the plaintiffs and against Kahen in the principal sum of $65,338.12. Kahen appeals from the March 2023 order and the judgment.

The appeal from the March 2023 order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the March 2023 order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

"The failure to obey a lawful order of a court is a species of contempt" (Matter of DeSiena v DeSiena, 167 AD3d 1006, 1007 [internal quotation marks omitted]). "The aim of civil contempt is to vindicate a party's right to the benefits of a judicial mandate or to compensate that party for the interference by the contemnor" (Matter of Ferrante v Stanford, 172 AD3d 31, 36 [internal quotation marks omitted]; see Matter of Banks v Stanford, 159 AD3d 134). "A motion to punish a party for civil contempt is addressed to the sound discretion of the court, and the movant bears the burden of proving the contempt by clear and convincing evidence" (Tankleff v Tankleff, 239 AD3d 685, 686 [internal quotation marks omitted]; see DeMaio v Capozello, 114 AD3d 899, 900). "The movant must establish (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" (Tankleff v Tankleff, 239 AD3d at 686 [internal quotation marks omitted]; see Judiciary Law § 753[A]; El-Dehdan v El-Dehdan, 26 NY3d 19, 29). For civil contempt, the movant need not establish willful disobedience, but the conduct must be intentional—not unwitting (see El-Dehdan v El-Dehdan, 26 NY3d at 29).

Here, the Supreme Court properly granted that branch of the plaintiffs' motion which was pursuant to Judiciary Law § 753(A) to hold Kahen in civil contempt. The record demonstrates, by clear and convincing evidence, that Kahen knowingly disobeyed the clear and unequivocal mandates of the February 2022 order, and that the plaintiffs were prejudiced by Kahen's contemptuous conduct (see Wells Fargo Bank, N.A. v Confino, 175 AD3d 533; DeMaio v Capozello, 114 AD3d at 900). Contrary to Kahen's contentions, the evidence presented at the hearing failed to show that he substantially complied with the directives of the February 2022 order or that his failure to comply lacked the requisite intentionality (see DeMaio v Capozello, 114 AD3d at 900).

"Judiciary Law § 773 permits recovery of attorney's fees from the offending party by a party aggrieved by contemptuous conduct" (Matter of Gonnard v Guido, 141 AD3d 649, 650; see Matter of McNelis v Carrington, 116 AD3d 858, 859). "The intent of Judiciary Law § 773 is to indemnify the aggrieved party for costs and expenses incurred as a result of the contempt" (Matter of Gonnard v Guido, 141 AD3d at 650). "Attorney's fees that are documented and directly related to the contemptuous conduct are generally recoverable unless they are proven excessive or reduced by the court in a reasoned decision" (id.).

Here, the attorney's fees and expenses awarded to the plaintiffs by the Supreme Court were sufficiently documented, were a direct product of Kahen's contemptuous conduct, and were reasonable in amount (see id.). Thus, the award of attorney's fees and expenses was appropriate pursuant to Judiciary Law § 773 (see id.).

DUFFY, J.P., FORD, LOVE and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court