June 25, 2013
Harvey S. Shipley Miller, etc., Plaintiff-Appellant,
The Icon Group LLC, Defendant-Respondent.
Penn Proefriedt Schwarzfeld & Schwartz, New York (Neal Schwarzfeld of counsel), for appellant.
Goldberg & Rimberg, PLLC, New York (Brad Coven of counsel), for respondent.
Andrias, J.P., Friedman, Moskowitz, DeGrasse, Feinman, JJ.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 22, 2013, which denied plaintiff's 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 plaintiff's motion. The documentary evidence established that defendant did not pay rent to the landlord after the restraining notice was served. Plaintiff's 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 plaintiff's reply papers (see e.g. Lumbermens Mut. Cas. Co. v Morse Shoe Co., 218 A.D.2d 624, 625-626 [1st Dept 1995]), and in any event the security deposit was retained by the landlord due to defendant's non payment of rent.