Simens v. Darwish

Appellate Division of the Supreme Court of New York

Simens v. Darwish

104 A.D.3d 465, 960 N.Y.S.2d 120

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 12, 2013

StatusPublished

Cited by2 cases

This text of 104 A.D.3d 465 (Simens v. Darwish) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Simens v. Darwish, 104 A.D.3d 465, 960 N.Y.S.2d 120 (N.Y. Ct. App. 2013).

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Opinion

[466]*466Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered November 7, 2011, which, to the extent appealed from, granted the motions of plaintiffs and the temporary receiver to the extent of holding defendant Charles Darwish (defendant) in civil and criminal contempt, and ordering him to pay $541,607.43 in civil fines and $500 in criminal fines, unanimously modified, on the law, to vacate the finding of criminal contempt and the $500 fine, and otherwise affirmed, without costs.

The court did not give defendant sufficient notice that he was in danger of being held in criminal contempt (see Beninati v Beninati, 181 AD2d 434, 434 [1st Dept 1992], lv dismissed 80 NY2d 924 [1992]). Indeed, the court stated at the beginning of the evidentiary hearing that the hearing was to involve civil contempt only. Accordingly, the finding of criminal contempt, and the corresponding fine, must be vacated.

The court, however, correctly held defendant in civil contempt, as there was clear and convincing evidence that defendant knowingly disobeyed clear and unequivocal orders of the court, causing prejudice to plaintiffs and the temporary receiver (Matter of McCormick v Axelrod, 59 NY2d 574, 582-583 [1983]). Defendant’s argument that the court, in finding him in contempt, could not consider its own record, which included admissions by defendant that he did, in fact, commit various acts that were the subject of the contempt motions, is unavailing and unsupported by any relevant or controlling legal authority.

We have considered defendant’s remaining contentions and find them unavailing. Concur — Sweeny, J.E, Moskowitz, AbdusSalaam, Román and Feinman, JJ.

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[466]*466Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered November 7, 2011, which, to the extent appealed from, granted the motions of plaintiffs and the temporary receiver to the extent of holding defendant Charles Darwish (defendant) in civil and criminal contempt, and ordering him to pay $541,607.43 in civil fines and $500 in criminal fines, unanimously modified, on the law, to vacate the finding of criminal contempt and the $500 fine, and otherwise affirmed, without costs.

The court did not give defendant sufficient notice that he was in danger of being held in criminal contempt (see Beninati v Beninati, 181 AD2d 434, 434 [1st Dept 1992], lv dismissed 80 NY2d 924 [1992]). Indeed, the court stated at the beginning of the evidentiary hearing that the hearing was to involve civil contempt only. Accordingly, the finding of criminal contempt, and the corresponding fine, must be vacated.

The court, however, correctly held defendant in civil contempt, as there was clear and convincing evidence that defendant knowingly disobeyed clear and unequivocal orders of the court, causing prejudice to plaintiffs and the temporary receiver (Matter of McCormick v Axelrod, 59 NY2d 574, 582-583 [1983]). Defendant’s argument that the court, in finding him in contempt, could not consider its own record, which included admissions by defendant that he did, in fact, commit various acts that were the subject of the contempt motions, is unavailing and unsupported by any relevant or controlling legal authority.

We have considered defendant’s remaining contentions and find them unavailing. Concur — Sweeny, J.E, Moskowitz, AbdusSalaam, Román and Feinman, JJ.

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104 A.D.3d 465, 960 N.Y.S.2d 120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simens-v-darwish-nyappdiv-2013.

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