### Walker v Brian 2024 NY Slip Op 31563(U) May 1, 2024 Supreme Court, New York County Docket Number: Index No. 155841/2023 Judge: John J. Kelley Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.INDEX NO. 155841/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/02/2024

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## SUPREME COURT OF 

## THE STATE OF NEWYORK NEWYORK COUNTY PRESENT: HON. JOHN J. KELLEY Justice -------------------X

DOUGLASS. WALKER, DIANA BRIAN, NATALIE H. DENT, CHRISTOPHER C. BRIAN, ALEXANDRA M. BRIAN, EARL W. BRIAN, Ill, JENNIFER BRIAN, DAVID SCHMICKEL, and WILLIAM J. HOWARD, all derivatively on behalfofDIANA AND EARL W. BRIAN, JR. FAMILYTRUST,

EARL W. BRIAN, Ill, Petitioners,

- V - Respondent. -------------------X PART 56M
INDEX NO. 155841/2023 MOTION DATE 04/08/2024 MOTION SEQ. NO. 002

DECISION, ORDER, AND JUDGMENTOF CONTEMPT

The following e-filed documents, listed by NYSCEF document number (Motion 002) 18, 19, 20, 21, 22, 23,25 were read on this motion to/for PUNISH FOR CONTEMPT This is a proceeding pursuant to CPLR 2308, 3124 and 3125 to compel the respondent, Earl W. Brian, Ill, to complywith a subpoena duces tecum and ad testificandum served upon him on March 17, 2023, and for an award ofattorneys' fees, disbursements, and costs incurred in commencing and litigating this proceeding. In a decision, order, andjudgmentdated August 25, 2023, this court grantedthe petition, and directedthe respondentto appear in person on September 21, 2023, at 10:00 a.m., orat any adjourned date agreed upon by the parties, at the offices ofthe petitioners' attorneys, to givetestimony concerning issues in the action entitled Douglas S. Walker, etal. v. MaryB. Burgoyne, M.D., Case No. C-20-CV-22-000047, pending in the Circuit Court, Talbot County, Maryland, and to produce all ofthe documents demanded in the subpoena served upon him on March 17, 2023. The respondent not only disobeyedthe March 17, 2023 subpoena, butfailed or refused to complywith this court'sAugust 25, 2023 order. The petitioners now move pursuantto Judiciary Law§§ 750, 751, and 753(A)(5) and CPLR 2308(a) to hold the respondent in civil and criminal contempt ofcourtfor his refusal to

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### [* 1]INDEX NO. 155841/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/02/2024

2 of 4 comply with this court's August 25, 2023 decision, order, andjudgment. The motion is granted to the extent thatthe respondent is adjudged and held to be in civil contempt, he is assessed a fine of$250.00, payable to the petitioners, and the petitioners are awarded the costs and expenses of litigating this motion, which shall be established upon submission ofa bill or invoice and an affirmation ofattorneys' services. The motion is otherwise denied. The court concludes thatthe respondent may be held in civil contempt, but not in criminal contempt. Civil and criminal contempt are distinguishable, in that a "contempt sanction is viewed as civil if it is 'remedial,' and forthe benefit ofthe complainant, but is criminal if its purpose is punitive, and to "'vindicate the authority ofthe court""' (New York City Tr. Auth. v Transportation Workers Union ofAm., AFL-CIO, 35 AD3d 73, 86 [2d Dept 2006], quoting International Union, UnitedMine Workers ofAmerica, vBagwell, 512 US 821, 827-828 [1994]). "Coercive penalties designed to modify the contemnor's behavior, generally speaking, are civil in nature, while penalties meantto punish the contemnorfor past acts ofdisobedience are criminal" (New York City Tr. Auth. v Transportation Workers Union ofAm., AFL-CIO, 35 AD3d at 86). Inasmuch as the petitioners are not attempting to vindicate the authority ofthe court and
are primarily seeking to modifythe respondent's future behaviorso that he complies with the subpoena and this court's prior order, criminal contempt is not applicable here. To prevail on an application to punish a party for civil contempt, the moving party must establish that the party to be held in contempt violated a clear and unequivocal court order, known to the parties (see Judiciary Law§ 753[A][3]; see also McCormick vAxelrod, 59 NY2d 574 [1983], amended60 NY2d 652 [1983]). The applicant must also establish thatthe partyto be held in contempt engaged in conductthatwas calculated to and actually did defeat, impair, impede, and prejudice the rights ofthe applicant (see 450 West 14th St. Corp. v40-56 Tenth Avenue, LLC, 15AD3d 166 [1st Dept 2005]; Lipstick, Ltd. v Grupo Tribasa, S.A. de C. V., 304 AD2d 482 [1st Dept 2003]). "[W]ilfulness is not an element ofcivil contempt" (EI-Dehdan vEIDehdan, 26 NY3d 19, 35 [2015]). A civil contempt must be proven by clear and convincing

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3 of 4 evidence (see Classe vSilverberg, 168AD3d 603, 604 [1st Dept 2019]). A lawful orderofthis court was rendered and in effect as ofAugust 25, 2023, directing the respondent to appearfor a deposition on a date certain and to produce requested documents on that date as well. By failing or refusing to appearor produce those documents, the respondent not only disobeyed a court order, but he also engaged in conduct thatwas meantto impede and prejudice the petitioners' rights. Hence, clearand convincing evidence supports the petitioners' motion. Where, as here, a complainant's rights may be prejudiced, but an actual loss or injury has not been caused orestablished, the imposition ofafine is an appropriate punishment (see King vKing, 124 Misc 2d 946, 950 [Sup Ct, N.Y. County 1984]). The "unambiguous" language ofthe Judiciary Law provides that such a fine may not exceed the amount ofthe complainant's costs and expenses in making the contempt motion, plus $250 (Judiciary Law§ 773; see State
v Unique Ideas, Inc., 44 NY2d 345, 349 [1978]; King vKing, 124 Misc2d at 950). Inasmuch as the petitioners' attorneys did not submit an invoice, bill, oraffirmation ofattorneys' services establishing how much the petitioners incurred in prosecuting this motion, the court cannot award such costs and expenses at thisjuncture. Hence, the court directsthe petitioners to submit such an invoice, bill, and affirmation ofattorneys' services supporting their application for
an award ofcosts to compensate them forthe respondent's civil contempt, upon which the court will issue a supplemental order making the appropriate award. In light ofthe foregoing, it is, ORDERED thatthe petitioners' motion is granted, without opposition, to the extent that the respondent is held in civil contempt and is directed to pay afine of$250.00, plus the petitioners' costs and expenses incurred in making this motion as a consequence thereof, and the motion is otherwise denied; and it is, ADJUDGED that the respondent, Earl W. Brian Ill, is held in civil contempt; and it is further,

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4 of 4 ORDERED that, on or before June 7, 2024, the respondent, Earl W. Brian Ill, shall purge his contempt by appearing for and giving a deposition and producing the documents identified in the subpoena served upon him; and it is further, ORDERED that, if, on or before June 7, 2024, the respondent, Earl W. Brian Ill, does not purge his contempt by appearing for and giving a deposition and producing the documents identified in the subpoena served upon him, he shall, upon motion by the petitioners. be subject to seizure by NewYork City Sheriffto compel his appearance; and it is further, ORDERED that, on or before May 10, 2024, the petitioners shall serve a copy ofthis decision, order, andjudgment upon the respondent by regular mail and certified mail, return receipt requested; and it is further, ORDERED that, within 30 days ofthe entry ofthis decision, order, andjudgmentthe petitioners shall submit a bill or invoice, and an affirmation ofattorneys' services, to establish the amount to which they are entitled to recoverfrom the respondent as a consequence ofhis civil contempt. This constitutes the Decision, Order, and Judgment ofContempt ofthe court.

5/1/2024

DATE

CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED

### □ DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

155841/2023 DOUGLASS.WALKER ET ALvs. EARLW. BRIAN, Ill Motion No. 002 NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARYAPPOINTMENT

### □ OTHER

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