SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0920-17T3

MARINA DISTRICT 

DEVELOPMENT CO., LLC

t/a BORGATA, 

Plaintiff-Appellant,

v.

MICHAEL TSEYTIN, 

Defendant-Respondent.

____________________________

Submitted December 19, 2018 – Decided

Before Judges Vernoia and Moynihan.

On appeal from Superior Court of New Jersey, Law 

Division, Atlantic County, Docket No. L-2720-12.

Josiah Knapp, attorney for appellant.

Respondent has not filed a brief. 

PER CURIAM

Plaintiff Marina District Development Co., LLC t/a Borgata appeals from 

the trial court's order denying plaintiff's motion for reconsideration of an order 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

March 13, 2019
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A-0920-17T3

denying its motion to hold defendant in contempt for failing to appear for a 

court-ordered supplementary proceedings deposition, R. 4:59-1(f), following 

the entry of a $202,332.60 judgment, plus costs, against defendant. Plaintiff 

argues the trial court erred by requiring that plaintiff first file an order to show 

cause to commence contempt proceedings. Because plaintiff requested that 

defendant be held in contempt, the trial court correctly ruled such relief is 

available only if proceedings are instituted by order to show cause; 1thus, we 

affirm. 

We conduct a de novo review of the applicable Court Rules, according no 

special deference to the "trial court's interpretation of the law." Manalapan 

Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Plaintiff, 

as a judgment-creditor, had the option of taking defendant's deposition or 

proceeding as provided by Rule 6:7-2. R. 4:59-1. If, as here, the judgmentdebtor fails to obey an order for discovery, the judgment-creditor could 

commence proceedings seeking relief pursuant to Rule 1:10-3 by filing a 

supported notice of motion. R. 6:7-2(e). The notice of motion must set forth a 

return date and the relief the judgment-creditor seeks, and include an order:

 

1

 Contempt proceedings can also be commenced by the court upon an order for 

arrest, an avenue unavailable to a party. R. 1:10-2(a).
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(1) adjudicating that the judgment-debtor has violated 

the litigant's rights of the judgment-creditor by failing 

to comply with the order for discovery or information 

subpoena;

(2) compelling the judgment-debtor to furnish answers 

immediately as required by the order for discovery or 

information subpoena;

(3) directing that if the judgment-debtor fails to appear 

in court on the return date or to furnish the required 

answers, he or she shall be arrested and confined to the 

county jail until he or she has complied with the order 

for discovery or information subpoena;

(4) directing the judgment-debtor, if he or she fails to 

appear in court on the return date, to pay the judgmentcreditor's attorney fees, if any, in connection with the 

motion to enforce litigant's rights; and

(5) granting such other relief as may be appropriate.

[Ibid.]

Rule 6:7-2(f) provides an enforcement mechanism:

If the judgment-debtor has failed to appear in court on 

the return date and the court enters an order to enforce 

litigant's rights, [the order, in prescribed form] shall 

state that upon the judgment-debtor's failure, within 10 

days of the certified date of mailing or personal service 

of the order, to comply with the information subpoena 

or discovery order, the court may issue an arrest 

warrant. 

The Rule pursuant to which such relief is sought, R. 1:10-3, provides, 

"[n]otwithstanding that an act or omission may also constitute a contempt of 
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court, a litigant in any action may seek relief by application in the action." The 

relief available in a Rule 1:10-3 motion – commonly known as a motion to 

enforce, or in aid of, litigant's rights2 – is limited in scope "to remediation of the

violation of a court order." Burke, 206 N.J. at 371. Neither Rule 6:7-2 nor Rule

1:10-3 provides for contempt as an available form of relief to a litigant seeking 

to enforce a court's supplementary-proceedings discovery order. The sanctions

against a non-compliant judgment-creditor available under Rule 1:10-3 are 

intended to be coercive. Milne v. Goldenberg, 428 N.J. Super. 184, 198 (App. 

Div. 2012). Likewise, the express relief provided in a Rule 6:7-2 order is 

coercive, not punitive, in nature. 

Conversely, contempt proceedings are penal. Zoning Bd. of Adjustment 

v. Datchko, 142 N.J. Super. 501, 509 (App. Div. 1976). Proceedings "to punish 

for contempt [except for contempt in the court's presence] shall be on notice and 

instituted only by the court upon an order for arrest or an order to show cause." 

R. 1:10-2. As we said in Datchko, 142 N.J. Super. at 509-10, a person charged 

with contempt 

must be afforded all of the rights of one charged with a 

crime except the right to indictment and to trial by jury.

This includes the right to have the order to show cause 

 

2 See Abbott v. Burke, 206 N.J. 332, 359 (2011); see also Manalapan Realty, 

140 N.J. at 392.
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itself specify the acts or omissions alleged to have been 

contumacious. Moreover, the order to show cause must 

clearly indicate that it involves a true contempt 

proceeding and not, as here, supplementary relief to the 

litigant.

Although plaintiff could have availed itself of the panoply of remedies 

available under Rules 6:7-2 and 1:10-3, it chose to seek to hold defendant in 

contempt.3 As the trial court noted, contempt proceedings must be initiated by 

order to show cause. The court, therefore, did not express "its decision based 

upon a palpably incorrect or irrational basis" or fail to consider or "appreciate 

the significance of probative, competent evidence" to justify reconsideration of 

its prior ruling. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) 

(quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990)).

Affirmed.

 

3

 Plaintiff's moving papers were not included in the record. In its merits brief, 

plaintiff states it "filed a [m]otion . . . to hold [defendant] in contempt of court 

for his failure to attend a court-ordered deposition."