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 NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. JOHN J. KELLEY 

Justice 

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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 behalf of DIANA 

AND EARL W. BRIAN, JR. FAMILY TRUST, 

EARL W. BRIAN, Ill, 

Petitioners, 

- V -

Respondent. 

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PART 56M 

INDEX NO. 155841/2023 

MOTION DATE 04/08/2024 

MOTION SEQ. NO. 002 

DECISION, ORDER, AND 

JUDGMENT OF 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 comply with a subpoena duces tecum and ad testificandum served upon 

him on March 17, 2023, and for an award of attorneys' fees, disbursements, and costs incurred 

in commencing and litigating this proceeding. In a decision, order, and judgment dated August 

25, 2023, this court granted the petition, and directed the respondent to appear in person on 

September 21, 2023, at 10:00 a.m., or at any adjourned date agreed upon by the parties, at the 

offices of the petitioners' attorneys, to give testimony concerning issues in the action entitled 

Douglas S. Walker, et al. v. Mary B. Burgoyne, M.D., Case No. C-20-CV-22-000047, pending in 

the Circuit Court, Talbot County, Maryland, and to produce all of the documents demanded in 

the subpoena served upon him on March 17, 2023. The respondent not only disobeyed the 

March 17, 2023 subpoena, but failed or refused to comply with this court's August 25, 2023 

order. The petitioners now move pursuant to Judiciary Law§§ 750, 751, and 753(A)(5) and 

CPLR 2308(a) to hold the respondent in civil and criminal contempt of court for his refusal to 

155841/2023 DOUGLASS. WALKER ET AL vs. EARL W. BRIAN, Ill 

Motion No. 002 

Page 1 of 4 

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comply with this court's August 25, 2023 decision, order, and judgment. The motion is granted 

to the extent that the 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 of a bill or invoice 

and an affirmation of attorneys' services. The motion is otherwise denied. 

The court concludes that the 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 for the benefit of the complainant, but is criminal if its 

purpose is punitive, and to "'vindicate the authority of the court""' (New York City Tr. Auth. v 

Transportation Workers Union of Am., AFL-CIO, 35 AD3d 73, 86 [2d Dept 2006], quoting 

International Union, United Mine Workers of America, v Bagwell, 512 US 821, 827-828 [1994]). 

"Coercive penalties designed to modify the contemnor's behavior, generally speaking, are civil 

in nature, while penalties meant to punish the contemnor for past acts of disobedience are 

criminal" (New York City Tr. Auth. v Transportation Workers Union of Am., AFL-CIO, 35 AD3d at 

86). Inasmuch as the petitioners are not attempting to vindicate the authority of the court and 

are primarily seeking to modify the respondent's future behavior so 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 v Axelrod, 59 NY2d 

57 4 [1983], amended 60 NY2d 652 [1983]). The applicant must also establish that the party to 

be held in contempt engaged in conduct that was calculated to and actually did defeat, impair, 

impede, and prejudice the rights of the applicant (see 450 West 14th St. Corp. v 40-56 Tenth 

Avenue, LLC, 15 AD3d 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 of civil contempt" (EI-Dehdan v EIDehdan, 26 NY3d 19, 35 [2015]). A civil contempt must be proven by clear and convincing 

155841/2023 DOUGLASS. WALKER ET AL vs. EARL W. BRIAN, Ill 

Motion No. 002 

Page 2 of 4 

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evidence (see Classe v Silverberg, 168 AD3d 603, 604 [1st Dept 2019]). A lawful order of this 

court was rendered and in effect as of August 25, 2023, directing the respondent to appear for a 

deposition on a date certain and to produce requested documents on that date as well. By 

failing or refusing to appear or produce those documents, the respondent not only disobeyed a 

court order, but he also engaged in conduct that was meant to impede and prejudice the 

petitioners' rights. Hence, clear and 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 or established, the imposition of a fine is an appropriate punishment (see 

King v King, 124 Misc 2d 946, 950 [Sup Ct, N.Y. County 1984]). The "unambiguous" language 

of the Judiciary Law provides that such a fine may not exceed the amount of the 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 v King, 124 Misc 2d at 950). Inasmuch as 

the petitioners' attorneys did not submit an invoice, bill, or affirmation of attorneys' services 

establishing how much the petitioners incurred in prosecuting this motion, the court cannot 

award such costs and expenses at this juncture. Hence, the court directs the petitioners to 

submit such an invoice, bill, and affirmation of attorneys' services supporting their application for 

an award of costs to compensate them for the respondent's civil contempt, upon which the court 

will issue a supplemental order making the appropriate award. 

In light of the foregoing, it is, 

ORDERED that the petitioners' motion is granted, without opposition, to the extent that 

the respondent is held in civil contempt and is directed to pay a fine 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, 

155841/2023 DOUGLASS. WALKER ET AL vs. EARL W. BRIAN, 111 

Motion No. 002 

Page 3 of 4 

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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 New York City Sheriff to compel his appearance; and it is further, 

ORDERED that, on or before May 10, 2024, the petitioners shall serve a copy of this 

decision, order, and judgment upon the respondent by regular mail and certified mail, return 

receipt requested; and it is further, 

ORDERED that, within 30 days of the entry of this decision, order, and judgment the 

petitioners shall submit a bill or invoice, and an affirmation of attorneys' services, to establish 

the amount to which they are entitled to recover from the respondent as a consequence of his 

civil contempt. 

This constitutes the Decision, Order, and Judgment of Contempt of the 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 AL vs. EARL W. BRIAN, Ill 

Motion No. 002 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

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