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Nancy Mills v. David Mills

State of New York Supreme Court, Appellate Division Third Judicial Department


June 21, 2012

NANCY MILLS, APPELLANT,
v.
DAVID MILLS, DEFENDANT. DAVID VAN BENSCHOTEN, RESPONDENT.

Appeal from an order of the Supreme Court (Melkonian, J.), entered October 4, 2010 in Ulster County, which denied plaintiff's motion to hold David Van Benschoten in civil contempt.

The opinion of the court was delivered by: Lahtinen, J.

MEMORANDUM AND ORDER

Calendar Date: April 25, 2012

Before: Peters, P.J., Rose, Lahtinen, Malone Jr. and Garry, JJ.

The underlying facts are set forth in our prior decision where we upheld the February 2009 order of Supreme Court (Lynch, J.) finding David Van Benschoten in civil contempt for violating the court's February 2008 order by making payments on a building contract that went directly to defendant rather than through the temporary receiver (72 AD3d 1296 [2010]). In May 2010, plaintiff moved to have Van Benschoten again held in civil contempt. Supreme Court (Melkonian, J.) denied the application without a hearing. Plaintiff appeals, and we reverse.

The parties' submissions raised a question of fact regarding whether Van Benschoten failed to pay the temporary receiver payments owed to defendant under Supreme Court's February 2008 order from February 2009 until termination of the subject contract. As such, the matter is remitted for a hearing on the motion.

Peters, P.J., Rose, Malone Jr. and Garry, JJ., concur.

ORDERED that the order is reversed, on the law, without costs, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger Clerk of the Court

20120621

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