SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT
December 22, 2009
TOWN OF RIVERHEAD, APPELLANT,
T.S. HAULERS, INC., RESPONDENT.
In an action, inter alia, to permanently enjoin the defendant from engaging in a sand and soil mining and processing operation, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Kerins, J.), dated September 2, 2008, which, after a hearing, denied its motion to hold the defendant in civil and/or criminal contempt of a judgment of the same court (Berler, J.) dated March 26, 2004.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
STEVEN W. FISHER, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON and JOHN M. LEVENTHAL, JJ.
(Index No. 14437/02)
DECISION & ORDER
ORDERED that the order is affirmed, with costs.
To prevail on a motion to punish for civil contempt, the movant must establish, by clear and convincing evidence (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct (see Coyle v Coyle, 63 AD3d 657, 658; Kalish v Lindsay, 47 AD3d 889; Galanos v Galanos, 46 AD3d 507; Biggio v Biggio, 41 AD3d 753; Gloveman Realty Corp. v Jefferys, 29 AD3d 858, 859). To prevail on a motion to punish for criminal contempt, the movant must establish, beyond a reasonable doubt, the willful disobedience of a court's lawful mandate (see Judiciary Law § 750[A]; § 751; Muraca v Meyerowitz, 49 AD3d 697; see also Matter of Rubackin v Rubackin, 62 AD3d 11, 19). Here, the plaintiff did not meet its burden (see Wheels Am. N.Y., Ltd. v Montalvo, 50 AD3d 1130; Panza v Nelson, 54 AD2d 928). Therefore, the hearing court properly denied the plaintiff's motion to hold the defendant in civil and/or criminal contempt.
FISHER, J.P., ANGIOLILLO, DICKERSON and LEVENTHAL, JJ., concur.
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