Preview
FILED: NASSAU COUNTY CLERK 06/07/2019 02:43 PM INDEX NO. 613848/2017
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 06/07/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
------------------------------------------------------------X
NYC MATERIALS CORP., DTA INDUSTRIES,
INC., ANTHONY J. VULPIS and NYC LEASING ECF CASE
GROUP, INC., Index no. 613848/2017
(DeStefano, J.)
Plaintiffs,
-against-
CSF MATERIALS CORP., MICHAEL BONSERA
and LISA BONSERA,
Defendants.
_____ _ _ _ ___________ _ _ __________________________-------------X
Defendants' Plaintiffs'
Memorandum of Law in Opposition to
to Hold Them in Civil and Criminal Contempt
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ii
PRELIMINARY STATEMENT 1
PROCEDURAL HISTORY AND RELEVANT FACTS
ARGUMENT
POINT I
PLAINTIFFS'
APPLICATION IS MOOT 2
POINT II
PLAINTIFFS HAVE NOT BEEN PREJUDICED 3
POINT III
THERE IS NO PROOF THAT LISA BONSERA
WAS AWARE OF THE ORDER 3
POINT IV
PLAINTIFFS FAILED TO ESTABLISH WILLFULNESS 4
CQNCLUSION 5
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TABLE OF AUTHORITIES
page
Coldwell Banker Real Estate Sems. Inc. v. Gitlin,
2011 N.Y. Misc. LEXIS 4315 (Sup. Ct. Nassau Cty. 2011) 3
Department of Environmental Protection v. Department of Environmental Conservation,
70 N.Y.2d 233 (1987) 4
Gomes v. Gomes, 106 A.D.3d 868 (2d Dept. 2013) 3, 4
Hearst Corp. v Clyne, 50 N.Y.2d 707 (1980) 2
Matter of Citineighbors Coal, of Historic Carnegie Hill v.
N.Y. City I_andmarks Pres. Comm'n, 2 N.Y.3d 727 (2004) 3
Matter of City of New York v New York State Public Employment Relations Board,
54 A.D.3d 480 (3d Dept., 2008) 2
Matter ofNRG Energy, Inc. v Crotty, 18 A.D.3d 916 (3rd Dept., 2005) 2
People v. John, 150 A.D.3d 889 (2d Dept. 2017) 3
Rocket Tech Fuel Corp. v. FC Petroleum, 2016 N.Y. Misc. LEXIS 722
(Sup. Ct. Nassau Cty. 2016) 3
Saratoga County Chamber of Commerce v Pataki,
100 N.Y.2d 801 (2003), cert denied 540 U.S. 1017 2
li
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
----------------------------------------------------------X
NYC MATERIALS CORP., DTA INDUSTRIES,
INC., ANTHONY J. VULPIS and NYC LEASING ECF CASE
GROUP, INC., Index no. 613848/2017
(DeStefano, J.)
Plaintiffs,
DEFENDANTS'
-against- MEMORANDUM OF LAW
CSF MATERIALS CORP., MICHAEL BONSERA
and LISA BONSERA,
Defendants.
-----------------------------------------------------------X
Defendants, by their attorneys Randy Scott Zelin P.C., respectfully submit this memorandum
plaintiffs'
of law in opposition to motion to hold them in civil and criminal contempt.
PRELIMINARY STATEMENT
plaintiffs'
Context is critical. Here, application for an order of civil and criminal contempt
must be viewed through the lens of this Court's Decision and Order dated September 25, 2018 and
plaintiffs'
entered on September 26, 2018 (Doc. No. 81) which rendered moot application. Plaintiffs
filed their application for an order of civil and criminal contempt on December 28, 2018 (Doc. No.
parties'
99). But the temporary restraining order contained in the so ordered stipulation relied on by
plaintiffs'
to support their application had been vacated over ninety (90) days prior.
Moreover, plaintiffs failed to meet their burden to show prejudice and willfulness on the part
of any defendant and that Lisa Bonsera so much as knew that there was a so ordered stipulation
containing a temporary restraining order -let alone that she had anything to do with the disobedience
alleged by plaintiffs.
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PROCEDURAL HISTORY AND RELEVANT FACTS
("Zelin"
Annexed to the affirmation of Randy Zelin and "Zelin Affirm., ¶__") dated June 6,
2019 are the following exhibits:
Exhibit A: Decision and Order of the Supreme Court, Nassau County
(DeStefano, J.) dated September 25, 2018 and entered on September
26, 2018;
Exhibit B: Stipulation for TRO so ordered by the Supreme Court, Nassau
(DeStefano, J.) dated December 22, 2017 (Doc. no. 29).
County
ARGUMENT
POINT I
PLAINTIFFS'
APPLICATION IS MOOT
It is well-settled law that the power of a court to determine the law arises out of, and is limited
to, determining the rights of parties who are "actually controverted in a particular case pending before
tribunal"
the Hearst Corp. v Clyne, 50 N.Y.2d 707 (1980); see also; Matter of City of New York v New York
State Public Employment Relations Board, 54 A.D.3d 480 (3d Dept., 2008). The Courts do not determine
academic, hypothetical, moot, or otherwise abstract questions. Hearst Corp. v Clyne, supra, at 713-714;
see also; Saratoga County Chamber of Commerce v Pataki, 100 N.Y.2d 801 (2003), cert denied 540 U.S. 1017 ;
Matter of NRG Energy, Inc. v Crotty, 18 A.D.3d 916 (3rd Dept., 2005).
plaintiffs'
The Court denied application for a preliminary injunction and concomitantly vacated
parties'
the temporary restraining order provided in the so ordered stipulation dated December 22,
plaintiffs'
2017 well prior to filing the instant application (ZeEn Affinn., $2). Consequently, it is
respectfully submitted that the issue is now moot. The rights of plaintiffs are no longer controverted
parties'
as far as the temporary restraining order reflected in the so ordered stipulation is concerned.
With the Court's September 25, 2018 Decision and Order vacating the temporary restraining order,
there has been a change in circumstances which now prevent the Court from an actual
determirang
2
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controversy. Matter of Citineighbors Coal, of Historic Carnegie Hill v. N.Y. City Landmarks Pres. Comm'n, 2
N.Y.3d 727 (2004).
POINT II
PLAINTIFFS HAVE NOT BEEN PREJUDICED
In order for the defendants to be found in civil contempt, plaintiffs must demonstrate
prejudice. Coldwell Banker Real Estate Servs. Inc. v. Gitlin, 2011 N.Y. Misc. LEXIS 4315 (Sup. Ct.
plaintiffs'
Nassau Cty. 2011). The proof must show that rights were defeated, impaired or
prejudiced. Gomes v. Gomes, 106 A.D.3d 868 (2d Dept. 2013). Here, the proof is in the pudding
that plaintiffs suffered no prejudice - this application was brought months after the issue was
already moot.
POINT III
THERE IS NO PROOF THAT LISA BONSERA WAS AWARE OF THE ORDER
There is no evidence - let alone clear and evidence - that defendant Lisa Bonsera
convincing
parties' -
was even aware of the temporary restraining order contained in the so ordered stipulation
let alone that she did anything to disobey it.
Regardless of whether the sanction is remedial (civil contempt) or punitive (criminal
contempt), "actual knowledge of a judgment or order is an indispensable element of a contempt
proceeding."
Rocket Tech Fuel Corp. v. FC Petroleum, 2016 N.Y. Misc. LEXIS 722 (Sup. Ct. Nassau Cty.
2016); see also; People v.John, 150 A.D.3d 889 (2d Dept. 2017).
Here, plaintiffs have not met their threshold burden of establishing that Lisa Bonsera had
actual knowledge of the order. No more than they have provided a shred of proof that Lisa Bonsera
disobeyed it.
3
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POINT IV
PLAINTIFFS FAILED TO ESTABLISH WILLFULNESS
Likewise, plaintiffs failed to show any level of willfulness on the part of the defendants in
parties'
allegedly violating the temporary restraining order contained in the so ordered stipulation.
To find the defendants guilty of criminal contempt, plaintiffs must show a higher degree of willfulness
together with the higher burden of proof beyond a reasonable doubt. Department of Envimumental
Protection v. Department of Envimnmental Conservation, 70 N.Y.2d 233 (1987).
All the proof shows - at best - is that there was a transfer of a single truck from one entity
"owned"
controlled by Michael Bonsera (defendant CSF Materials Corp.) to another entity by
plaintiffs'
Michael Bonsera (LMR Leasing Group, LLC) (see motion, Exhibit 3). There is no proof
"transfer"
that this was anything more than ministerial or administrative (Zelin Affirm., ¶5). There
"bad" -
is no proof that this transfer was done with any bad intent or cause this is nothing like
shredding documents in the face of a court order requiring the defendant to preserve all documents.
Gomes v. Gomes, 106 A.D.3d at 869, 870.
To the contrary, the proof shows that none of the trucks nor equipment were actually sold;
plaintiffs'
nor did any transfer impact rights and remedies at all (Zelin Affirm., ¶5). The proof shows
that the defendants continued to use the trucks and equipment in the ordinary course of business as
- plaintiffs'
permitted by the stipulation without any prejudice to rights in the event were they to
prevail on their claims to the trucks and equipment (Zelin Affirm., ¶5). There is no proof that the
plaintiffs'
trucks or equipment were ever put beyond reach in the event that the Court were to find
for them - which was not the case (Zelin 15).
Affirm.,
4
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CONCLUSIO_N
The proof fails to establish prejudice to the plaintiffs; Lisa Bonsera's awarenes
or
any degree of willfulness on the part of the defendants. In the of
backdrop
rendered academic virtue of the Court's Decision and Order the
by vacating tempor
plaintiffs'
order over three
(3)
months prior to application, it is submitted
respectfully
application should be denied in its entirety.
Dated: New York, New York
June 7, 2019
y submit
pect ,
Zelin
Randy
Scott e P.C.
Randy
32nd
747 Third Ave.,
New York, N.Y. 10017
212.897.9100 (T)
212..656.1118
(F)
rsz@,rszpc.com
Attorneys for Defendants
To:
Arthur J. Muller III
Trivella & Forte, LLP
1311 Mamaroneck Ave., Suite 170
White Plains, New York 10605
Attorneys for Plaintiffs
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Preview
FILED: NASSAU COUNTY CLERK 06/07/2019 02:43 PM INDEX NO. 613848/2017 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 06/07/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ------------------------------------------------------------X NYC MATERIALS CORP., DTA INDUSTRIES, INC., ANTHONY J. VULPIS and NYC LEASING ECF CASE GROUP, INC., Index no. 613848/2017 (DeStefano, J.) Plaintiffs, -against- CSF MATERIALS CORP., MICHAEL BONSERA and LISA BONSERA, Defendants. _____ _ _ _ ___________ _ _ __________________________-------------X Defendants' Plaintiffs' Memorandum of Law in Opposition to to Hold Them in Civil and Criminal Contempt 1 of 8 FILED: NASSAU COUNTY CLERK 06/07/2019 02:43 PM INDEX NO. 613848/2017 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 06/07/2019 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT 1 PROCEDURAL HISTORY AND RELEVANT FACTS ARGUMENT POINT I PLAINTIFFS' APPLICATION IS MOOT 2 POINT II PLAINTIFFS HAVE NOT BEEN PREJUDICED 3 POINT III THERE IS NO PROOF THAT LISA BONSERA WAS AWARE OF THE ORDER 3 POINT IV PLAINTIFFS FAILED TO ESTABLISH WILLFULNESS 4 CQNCLUSION 5 2 of 8 FILED: NASSAU COUNTY CLERK 06/07/2019 02:43 PM INDEX NO. 613848/2017 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 06/07/2019 TABLE OF AUTHORITIES page Coldwell Banker Real Estate Sems. Inc. v. Gitlin, 2011 N.Y. Misc. LEXIS 4315 (Sup. Ct. Nassau Cty. 2011) 3 Department of Environmental Protection v. Department of Environmental Conservation, 70 N.Y.2d 233 (1987) 4 Gomes v. Gomes, 106 A.D.3d 868 (2d Dept. 2013) 3, 4 Hearst Corp. v Clyne, 50 N.Y.2d 707 (1980) 2 Matter of Citineighbors Coal, of Historic Carnegie Hill v. N.Y. City I_andmarks Pres. Comm'n, 2 N.Y.3d 727 (2004) 3 Matter of City of New York v New York State Public Employment Relations Board, 54 A.D.3d 480 (3d Dept., 2008) 2 Matter ofNRG Energy, Inc. v Crotty, 18 A.D.3d 916 (3rd Dept., 2005) 2 People v. John, 150 A.D.3d 889 (2d Dept. 2017) 3 Rocket Tech Fuel Corp. v. FC Petroleum, 2016 N.Y. Misc. LEXIS 722 (Sup. Ct. Nassau Cty. 2016) 3 Saratoga County Chamber of Commerce v Pataki, 100 N.Y.2d 801 (2003), cert denied 540 U.S. 1017 2 li 3 of 8 FILED: NASSAU COUNTY CLERK 06/07/2019 02:43 PM INDEX NO. 613848/2017 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 06/07/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ----------------------------------------------------------X NYC MATERIALS CORP., DTA INDUSTRIES, INC., ANTHONY J. VULPIS and NYC LEASING ECF CASE GROUP, INC., Index no. 613848/2017 (DeStefano, J.) Plaintiffs, DEFENDANTS' -against- MEMORANDUM OF LAW CSF MATERIALS CORP., MICHAEL BONSERA and LISA BONSERA, Defendants. -----------------------------------------------------------X Defendants, by their attorneys Randy Scott Zelin P.C., respectfully submit this memorandum plaintiffs' of law in opposition to motion to hold them in civil and criminal contempt. PRELIMINARY STATEMENT plaintiffs' Context is critical. Here, application for an order of civil and criminal contempt must be viewed through the lens of this Court's Decision and Order dated September 25, 2018 and plaintiffs' entered on September 26, 2018 (Doc. No. 81) which rendered moot application. Plaintiffs filed their application for an order of civil and criminal contempt on December 28, 2018 (Doc. No. parties' 99). But the temporary restraining order contained in the so ordered stipulation relied on by plaintiffs' to support their application had been vacated over ninety (90) days prior. Moreover, plaintiffs failed to meet their burden to show prejudice and willfulness on the part of any defendant and that Lisa Bonsera so much as knew that there was a so ordered stipulation containing a temporary restraining order -let alone that she had anything to do with the disobedience alleged by plaintiffs. 4 of 8 FILED: NASSAU COUNTY CLERK 06/07/2019 02:43 PM INDEX NO. 613848/2017 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 06/07/2019 PROCEDURAL HISTORY AND RELEVANT FACTS ("Zelin" Annexed to the affirmation of Randy Zelin and "Zelin Affirm., ¶__") dated June 6, 2019 are the following exhibits: Exhibit A: Decision and Order of the Supreme Court, Nassau County (DeStefano, J.) dated September 25, 2018 and entered on September 26, 2018; Exhibit B: Stipulation for TRO so ordered by the Supreme Court, Nassau (DeStefano, J.) dated December 22, 2017 (Doc. no. 29). County ARGUMENT POINT I PLAINTIFFS' APPLICATION IS MOOT It is well-settled law that the power of a court to determine the law arises out of, and is limited to, determining the rights of parties who are "actually controverted in a particular case pending before tribunal" the Hearst Corp. v Clyne, 50 N.Y.2d 707 (1980); see also; Matter of City of New York v New York State Public Employment Relations Board, 54 A.D.3d 480 (3d Dept., 2008). The Courts do not determine academic, hypothetical, moot, or otherwise abstract questions. Hearst Corp. v Clyne, supra, at 713-714; see also; Saratoga County Chamber of Commerce v Pataki, 100 N.Y.2d 801 (2003), cert denied 540 U.S. 1017 ; Matter of NRG Energy, Inc. v Crotty, 18 A.D.3d 916 (3rd Dept., 2005). plaintiffs' The Court denied application for a preliminary injunction and concomitantly vacated parties' the temporary restraining order provided in the so ordered stipulation dated December 22, plaintiffs' 2017 well prior to filing the instant application (ZeEn Affinn., $2). Consequently, it is respectfully submitted that the issue is now moot. The rights of plaintiffs are no longer controverted parties' as far as the temporary restraining order reflected in the so ordered stipulation is concerned. With the Court's September 25, 2018 Decision and Order vacating the temporary restraining order, there has been a change in circumstances which now prevent the Court from an actual determirang 2 5 of 8 FILED: NASSAU COUNTY CLERK 06/07/2019 02:43 PM INDEX NO. 613848/2017 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 06/07/2019 controversy. Matter of Citineighbors Coal, of Historic Carnegie Hill v. N.Y. City Landmarks Pres. Comm'n, 2 N.Y.3d 727 (2004). POINT II PLAINTIFFS HAVE NOT BEEN PREJUDICED In order for the defendants to be found in civil contempt, plaintiffs must demonstrate prejudice. Coldwell Banker Real Estate Servs. Inc. v. Gitlin, 2011 N.Y. Misc. LEXIS 4315 (Sup. Ct. plaintiffs' Nassau Cty. 2011). The proof must show that rights were defeated, impaired or prejudiced. Gomes v. Gomes, 106 A.D.3d 868 (2d Dept. 2013). Here, the proof is in the pudding that plaintiffs suffered no prejudice - this application was brought months after the issue was already moot. POINT III THERE IS NO PROOF THAT LISA BONSERA WAS AWARE OF THE ORDER There is no evidence - let alone clear and evidence - that defendant Lisa Bonsera convincing parties' - was even aware of the temporary restraining order contained in the so ordered stipulation let alone that she did anything to disobey it. Regardless of whether the sanction is remedial (civil contempt) or punitive (criminal contempt), "actual knowledge of a judgment or order is an indispensable element of a contempt proceeding." Rocket Tech Fuel Corp. v. FC Petroleum, 2016 N.Y. Misc. LEXIS 722 (Sup. Ct. Nassau Cty. 2016); see also; People v.John, 150 A.D.3d 889 (2d Dept. 2017). Here, plaintiffs have not met their threshold burden of establishing that Lisa Bonsera had actual knowledge of the order. No more than they have provided a shred of proof that Lisa Bonsera disobeyed it. 3 6 of 8 FILED: NASSAU COUNTY CLERK 06/07/2019 02:43 PM INDEX NO. 613848/2017 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 06/07/2019 POINT IV PLAINTIFFS FAILED TO ESTABLISH WILLFULNESS Likewise, plaintiffs failed to show any level of willfulness on the part of the defendants in parties' allegedly violating the temporary restraining order contained in the so ordered stipulation. To find the defendants guilty of criminal contempt, plaintiffs must show a higher degree of willfulness together with the higher burden of proof beyond a reasonable doubt. Department of Envimumental Protection v. Department of Envimnmental Conservation, 70 N.Y.2d 233 (1987). All the proof shows - at best - is that there was a transfer of a single truck from one entity "owned" controlled by Michael Bonsera (defendant CSF Materials Corp.) to another entity by plaintiffs' Michael Bonsera (LMR Leasing Group, LLC) (see motion, Exhibit 3). There is no proof "transfer" that this was anything more than ministerial or administrative (Zelin Affirm., ¶5). There "bad" - is no proof that this transfer was done with any bad intent or cause this is nothing like shredding documents in the face of a court order requiring the defendant to preserve all documents. Gomes v. Gomes, 106 A.D.3d at 869, 870. To the contrary, the proof shows that none of the trucks nor equipment were actually sold; plaintiffs' nor did any transfer impact rights and remedies at all (Zelin Affirm., ¶5). The proof shows that the defendants continued to use the trucks and equipment in the ordinary course of business as - plaintiffs' permitted by the stipulation without any prejudice to rights in the event were they to prevail on their claims to the trucks and equipment (Zelin Affirm., ¶5). There is no proof that the plaintiffs' trucks or equipment were ever put beyond reach in the event that the Court were to find for them - which was not the case (Zelin 15). Affirm., 4 7 of 8 FILED: NASSAU COUNTY CLERK 06/07/2019 02:43 PM INDEX NO. 613848/2017 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 06/07/2019 CONCLUSIO_N The proof fails to establish prejudice to the plaintiffs; Lisa Bonsera's awarenes or any degree of willfulness on the part of the defendants. In the of backdrop rendered academic virtue of the Court's Decision and Order the by vacating tempor plaintiffs' order over three (3) months prior to application, it is submitted respectfully application should be denied in its entirety. Dated: New York, New York June 7, 2019 y submit pect , Zelin Randy Scott e P.C. Randy 32nd 747 Third Ave., New York, N.Y. 10017 212.897.9100 (T) 212..656.1118 (F) rsz@,rszpc.com Attorneys for Defendants To: Arthur J. Muller III Trivella & Forte, LLP 1311 Mamaroneck Ave., Suite 170 White Plains, New York 10605 Attorneys for Plaintiffs 8 of 8