Miller v. Icon Group LLC

107 A.D.3d 585, 968 N.Y.S.2d 53

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 25, 2013
• Status: Published

Opinion

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 22, 2013, which denied plaintiffs motion for an order holding defendant and its principals in contempt for violation of a restraining notice, unanimously affirmed, with costs.

Plaintiff moved for an order pursuant to CPLR 5251 and Judiciary Law § 756 punishing defendant and its two managing members for contempt for violating the terms of a restraining notice served on defendant on or about June 10, 2009 in connection with a $2,400,814.93 judgment obtained by plaintiff against defendant. Plaintiff alleged that it had learned from its deposition of defendant’s landlord that defendant had continued to pay $140,077.40 in rent through June 30, 2010.

Supreme Court providently exercised its discretion in denying plaintiffs motion. The documentary evidence established that defendant did not pay rent to the landlord after the restraining notice was served. Plaintiffs argument that defendant improperly transferred its security deposit to its landlord pursuant to an early lease termination agreement, in violation of the restraining notice, was improperly raised for the first time in plaintiffs reply papers (see e.g. Lumbermens Mut. Cas. Co. v Morse Shoe Co., 218 AD2d 624, 625-626 [1st Dept 1995]), and in any event the security deposit was retained by the landlord due to defendant’s nonpayment of rent. Concur — Andrias, J.P., Friedman, Moskowitz, DeGrasse and Feinman, JJ.