Panza v. Nelson

54 A.D.2d 928, 388 N.Y.S.2d 130, 1976 N.Y. App. Div. LEXIS 14779

Opinion

In a medical malpractice action, the appeals are from (1) an order of the Supreme Court, Kings County, entered March 19, 1976, which, inter alia, directed appellant to deliver the file and X rays involved in this action to respondent and (2) a further order of the same court, entered July 21, 1976, which, after a hearing, inter alia, granted respondent’s motion to hold appellant in contempt for failure to comply with the order entered March 19, 1976. Order entered March 19, 1976 affirmed, without costs or disbursements. Order entered July 21, 1976 reversed, without costs or disbursements, and motion to hold appellant in contempt denied. Upon the dissolution of the law firm of which appellant was a partner, respondent, who had retained the said firm as trial counsel in this action, was entitled to a return of the files absent a specific statement from the clients to the contrary (see Matter of Williams & Geiger v Edelman, Berger, Peters & Koshel, 52 AD2d 957). On an application to hold an individual in civil contempt pursuant to section 753 of the Judiciary Law, it is necessary that the movant show, by a reasonable certainty, that the individual is in contempt. Respondent has not satisfied his burden. Disbelief of appellant’s testimony and inconclusive circumstantial evidence is insufficient to meet the standard of reasonable certainty. Hopkins, Acting P. J., Damiani, Rabin, Shapiro and Hawkins, JJ., concur.