Biggio v. Biggio, 41 A.D.3d 753 (N.Y. App. Div. 2007). · Go Syfert
Search
Biggio v. Biggio, 41 A.D.3d 753 (N.Y. App. Div. 2007). Cases Citing This Book View Copy Cite
30 citation events (30 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Peay v. Peay (nyappdiv, 2017-12-22)
Treatment trajectory · 2007 → 2026 · click a year to view as-of
2007 2016 2026
Top citers, strongest first. 9 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Peay v. Peay
N.Y. App. Div. · 2017 · confidence medium
Inasmuch as the finding of contempt is supported by the record, we may correct the order to add that language (see Biggio v Biggio, 41 AD3d 753, 754 [2d Dept 2007]; cf. Matter of Wilce v Scalise, 81 AD3d 1407, 1407-1408 [4th Dept 2011]).
discussed Cited as authority (rule) Hayes v. Barroga-Hayes
N.Y. App. Div. · 2014 · confidence medium
“To prevail on a motion to punish for civil contempt, the movant must establish (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” (Coyle v Coyle, 63 AD3d 657, 658 [2009]; see Galanos v Galanos, 46 AD3d 507, 508 [2007]; Biggio v Biggio, 41 AD3d 753, 753-754 [2007]; Raphael v Raphael, 20 AD3d 463, 463 [2005]).
discussed Cited as authority (rule) Hayes v. Barroga-Hayes
N.Y. App. Div. · 2014 · confidence medium
“To prevail on a motion to punish for civil contempt, the movant must establish (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” (Coyle v Coyle, 63 AD3d 657, 658 [2009]; see Galanos v Galanos, 46 AD3d 507, 508 [2007]; Biggio v Biggio, 41 AD3d 753, 753-754 [2007]; Raphael v Raphael, 20 AD3d 463, 463 [2005]).
discussed Cited as authority (rule) Rose v. Levine
N.Y. App. Div. · 2011 · confidence medium
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 [2009]; Kalish v Lindsay, 47 AD3d 889, 891 [2008]; Galanos v Galanos, 46 AD3d 507, 508 [2007]; Biggio v Biggio, 41 AD3d 753, 753-754 [2007]; Gloveman Realty Corp. v Jefferys, 29 AD3d 858, 859 [2…
discussed Cited as authority (rule) Dunn v. Dunn (2×)
N.Y. App. Div. · 2010 · confidence medium
A court may punish for civil contempt any disobedience of a lawful judicial order expressing an unequivocal mandate (see McCain v Dinkins, 84 NY2d 216, 226 [1994]; Matter of McCormick v Axelrod, 59 NY2d 574, 583 [1983]; Biggio v Biggio, 41 AD3d 753, 754 [2007]), whenever the rights or remedies of a party to a civil action may be defeated, impaired, impeded, or prejudiced (see Judiciary Law § 753 [A] [3]; Matter of Department of Envtl.
discussed Cited as authority (rule) Wheels America New York, Ltd. v. Montalvo (2×)
N.Y. App. Div. · 2008 · confidence medium
To prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with the contempt violated a clear and unequivocal mandate of the court, thereby prejudicing the movant’s rights (see Judiciary Law § 753 [A] [3]; Galanos v Galanos, 46 AD3d 507, 508 [2007]; Riverside Capital Advisers, Inc. v First Secured Capital Corp., 43 AD3d 1023, 1024 [2007]; Biggio v Biggio, 41 AD3d 753, 753-754 [2007]; Giano v Ioannou, 41 AD3d 427 [2007]; Rupp-Elmasri v Elmasri, 305 AD2d 394, 395 [2003]).
cited Cited as authority (rule) Denaro v. Rosalia
N.Y. App. Div. · 2008 · confidence medium
The moving party must establish the contempt by clear and convincing evidence (see Biggio v Biggio, 41 AD3d 753, 754 [2007]; Raphael v Raphael, 20 AD3d 463, 463-464 [2005]).
discussed Cited as authority (rule) Galanos v. Galanos (2×)
N.Y. App. Div. · 2007 · confidence medium
Here, the plaintiff met his burden of proving, by clear and convincing evidence, that the defendant violated a lawful and unequivocal mandate, to wit, an explicit directive contained in the order dated January 30, 2004, of which she had knowledge, and, in so doing, prejudiced the plaintiffs rights (see Biggio v Biggio, 41 AD3d 753, 754 [2007]; Raphael v Raphael, 20 AD3d at 464 ).
discussed Cited "see" Taylor v. Taylor
N.Y. App. Div. · 2011 · signal: see · confidence high
The defendant is correct that the order appealed from failed to set forth the required recital that the contemptuous conduct was “calculated to or actually did defeat, impair, impede or prejudice the [plaintiffs] rights or remedies” (Stempler v Stempler, 200 AD2d 733, 734 [1994] [internal quotation marks omitted]; see Biggio v Biggio, 41 AD3d 753, 754 [2007]; Lopez v Ajose, 33 AD3d at 977 ).
Retrieving the full opinion text from the archive…
Lawrence Biggio
v.
Jacqueline Biggio
Appellate Division of the Supreme Court of the State of New York.
Jun 26, 2007.
41 A.D.3d 753
Cited by 21 opinions  |  Published

In an action for a divorce and ancillary relief, the wife appeals from an order of the Supreme Court, Nassau County (Iannacci, J.), dated April 13, 2006, which, without a hearing, granted the husband’s motion to hold her in contempt for her willful violation of an order of the same court dated March 9, 2004, and directed her to pay an attorney’s fee to the husband’s attorney in the sum of $5000.

Ordered that the order is modified, on the law, by adding thereto a decretal paragraph stating: “Ordered, adjudged, and decreed that the wife’s conduct was calculated to, or actually did, defeat, impair, impede, or prejudice the husband’s rights or remedies;” as so modified, the order is affirmed, with costs to the husband.

“To sustain a finding of civil contempt based upon a violation of a court order, it is necessary to establish that a lawful court[*754] order clearly expressing an unequivocal mandate was in effect and the person alleged to have violated the order had actual knowledge of its terms” (Ottomanelli v Ottomanelli, 17 AD3d 647, 648 [2005] [internal quotation marks omitted]; see Freihofner v Freihofner, 39 AD3d 465 [2007]; Kawar v Kawar, 231 AD2d 681, 682 [1996]). The husband, as the party moving for a finding of contempt, bore the burden of proving contempt by clear and convincing evidence (see Raphael v Raphael, 20 AD3d 463, 463-464 [2005]). The husband met his burden, which was not overcome, by establishing that the wife mortgaged the marital home and spent at least some of the proceeds on expenses that were not “in the ordinary course of business or day to day living expenses,” in violation of the terms of the court’s order dated March 9, 2004. That order, on consent, “restrained and enjoined [the parties] from disposing, dissipating, removing or transferring any marital property except in the ordinary course of business or day to day living expenses.” Additionally, the husband was prejudiced by what the Supreme Court properly found to be the wife’s willful violation of the order (see Raphael v Raphael, supra).

The order appealed from failed to set forth the required recital that the contemptuous conduct was “calculated to, or actually did defeat, impair, impede or prejudice the [husband’s] rights or remedies” (Stempler v Stempler, 200 AD2d 733, 734 [1994] [internal quotation marks omitted]). Since, however, the finding of contempt is supported by the record, and by the wife’s admission of the behavior underlying the contempt finding, the omission is a mere irregularity which may be corrected on appeal (see Raphael v Raphael, supra). Accordingly, we modify the order to include the requisite recital. Florio, J.P., Fisher, Carni and McCarthy, JJ., concur.