Preview
FILED: NASSAU COUNTY CLERK 12/03/2018 10:42 AM INDEX NO. 613848/2017
NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/03/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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NYC MATERIALS CORP., DTA INDUSTRIES,
INC., ANTHONY J. VULPIS, and NYC LEASING Index No.: 613848/2017
GROUP INC.,
Plaintiffs,
-against-
CSF MATERIALS CORP., MICHAEL BONSERA,
and LISA BONSERA,
Defendants.
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PLAINTIFFS’ MEMORANDUM OF LAW
IN SUPPORT OF ORDER TO SHOW CAUSE FOR CONTEMPT
TRIVELLA & FORTE, LLP
1311 Mamaroneck Avenue, Ste. 170
White Plains, New York 10605
(914) 949-9075
(914) 949-4752 (facsimile)
Arthur J. Muller III
aj@tfsllp.com
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INTRODUCTION
Plaintiffs, NYC MATERIALS CORP., DTA INDUSTRIES, INC., and ANTHONY J.
VULPIS, respectfully submit this Memorandum of Law in Support of its Order to Show Cause
for Contempt against Defendants, jointly and severally. On December 22, 2017 this Court So-
Ordered a TRO stipulation which enjoined Defendants from, inter alia, selling or transferring
certain vehicles and equipment, including a 2013 Kenworth Truck (Vin Ending 5188). DMV
records, attached to the accompanying Affirmation of Arthur J. Muller III, Esq., show that
Defendants transferred the 2013 Kenworth Truck in May 2018 to a nonparty while the TRO was
in effect. This transfer was in clear violation of the terms of the TRO. Plaintiff Anthony Vulpis
is prejudiced by the transfer as a personal guarantor on loans on the Kenworth Truck secured by
Volvo Financial Services (Volvo). Volvo has filed a motion to intervene in this action, noting
that the subject loan is in default and, as such, is attempting to repossess the truck. At a
minimum, Volvo will incur additional expenses as a result of the Defendants’ violation of the
TRO, which may be imputed to Vulpis in accordance with the relevant financing agreements.
Based on the above, Plaintiffs seek an Order of Criminal and Civil Contempt against Defendants,
together with an award of its attorneys’ fees and costs to be determined at a hearing.
ARGUMENT
I. A CIVIL CONTEMPT ORDER SHOULD BE ISSUED AGAINST
DEFENDANTS
Defendants should be held in Civil Contempt for their disobedience of this Court’s
December 22, 2017 Order. Judiciary Law Section 753 provides this Court with the “power to
punish … [any] person …for disobedience to a lawful mandate of court…”. “To sustain a
finding of civil contempt, a court must find that the alleged contemnor violated a lawful order of
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the court, clearly expressing an unequivocal mandate, of which that party had knowledge, and
that as a result of the violation a right of a party to the litigation was prejudiced [] ‘[I]t is not
necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience,
regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes or prejudices
the rights of a party.’” Casavecchia v Mizrahi, 57 AD3d 702, 703 [2d Dept 2008] [citations
omitted]; see Judiciary Law § 753(A)(3).
There can be no dispute that the Order unequivocally enjoins Defendants from
transferring or selling the subject 2013 Kenworth. As a result of Defendant’s conduct in
violating the Court’s Order, Plaintiff’s rights and protections against remedies which will be
prosecuted by Volvo for violation of the relevant financing agreements has been impeded and
impaired. Such conduct on the part of Defendant was calculated to, or actually did, defeat,
impair, impede, or prejudice the Plaintiff's rights, remedies and defenses. See e.g., Inc. Vill. of
Plandome Manor v. Ioannou, 54 AD3d 365, 366, 862 NYS2d 592, 593 [2d Dept. 2008].
Defendants’ disobedience has impeded Plaintiffs’ rights, remedies, defenses and ability to
honor its obligations with Volvo. Under the terms of the agreement, Volvo may collect any
deficiency judgment resulting from the sale of the subject Kenworth and deduct from any sale
proceeds its costs and expenses, which will be increased as a result of Defendants’ secreting and
selling of the truck.
The relevant agreement with Volvo reads, inter alia, in pertinent part:
Miscellaneous: …Buyer agrees to pay on demand, all reasonable
attorneys’ fees and all other costs and expenses which may be
incurred by Lender in enforcement of this Contract…Buyer shall be
further liable for all costs and expenses of any nature whatsoever
incurred by Lender in any repossession, recovery, storage, repair,
sale, release, or other disposition of the property, plus interest …
Vulpis Ex. 2 [Credit Sales Contract]. The respective guaranties on the subject vehicle has the
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potential to render Mr. Vulpis liable for such costs and expenses incurred by Volvo. Id. The
conduct of Defendants, inter alia, the sale of the truck to a nonparty without Plaintiffs’
permission, has prejudiced Plaintiffs in rendering them unable to fulfill obligations under the
contract and guarantees, thus exposing Plaintiffs, specifically Mr. Vulpis, to potential increased
liability with respect to any claims by Volvo.
Defendants’ violation of the TRO has also caused Plaintiffs to suffer additional legal fees
and costs seeking compliance with this Court’s Order. As a result, Plaintiffs are entitled to
statutory damages in an amount no less than $250.00, plus attorney’s fees and costs. Jud. Law §
773; Dept. of Envtl. Protection of City of New York v Dept. of Envtl. Conservation of State of
N.Y., 70 NY2d 233, 239 [1987] [“A civil contempt is one where the rights of an individual have
been harmed by the contemnor's failure to obey a court order []. Any penalty imposed is
designed not to punish but, rather, to compensate the injured private party or to coerce
compliance with the court's mandate or both.”]; Hamilton v Murphy, 79 AD3d 1210, 1214 [3d
Dept 2010] [party adjudge in contempt ordered to pay “costs incurred for the preparation of the
contempt motion”]. As set forth in the time records attached to the Muller Affirmation.
Plaintiffs incurred $4,025.00 in fees in preparing the motion. “Attorney's fees that are
documented and directly related to the contemptuous conduct are generally recoverable unless
they are proven excessive or reduced by the court in a reasoned decision.” Gonnard v Guido, 141
AD3d 649, 650 [2d Dept 2016]. When “motion papers contained ample documentation of the
fees and costs requested and [nonmovant] did not challenge the amounts, a hearing was not
required.” In re Arbitration Between Fid. Brokerage Services, Inc., 294 AD2d 244, 245 [1st Dept
2002]. Plaintiffs also request $206.00 in costs related to DMV search fees and fees for the
production of records relative to their FOIL request, plus the $45.00 motion fee for this motion.
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To the extent the Court requests a hearing to determine the contempt or fees, Plaintiffs reserve its
right to supplement its fee application as to any additional fees incurred “which flowed directly
from plaintiff's contemptuous actions.” Bell v White, 144 AD3d 1235, 1236 [3d Dept 2016], lv to
appeal dismissed, 29 NY3d 961 [2017], rearg denied, 29 NY3d 1047 [2017].
Further the individual Defendants were subject to TRO in their individual capacity. Even
if they were nonparties, they may be held liable for contempt if they “in any way ‘participated in
the willful disobedience of the order.’” In re Grand Jury Subpoena Duces Tecum served upon
Morano's of Fifth Ave., Inc., 144 AD2d 252, 256, 533 NYS2d 869, 872 [1st Dept. 1988], citing
Citibank, N.A. v. Anthony Lincoln–Mercury, Inc., 86 AD2d 828, 829, 447 NYS2d 262 [1st Dept.
1982].
Based on the above, Plaintiffs ask this Court to issue an order of civil contempt against
Defendants, together with an award of fees and costs.
II. A CRIMINAL CONTEMPT ORDER SHOULD BE ISSUED AGAINST
DEFENDANTS
“To sustain a finding of either civil or criminal contempt based on an alleged violation of
a court order it is necessary to establish that a lawful order of the court clearly expressing an
unequivocal mandate was in effect []. It must also appear with reasonable certainty that the order
has been disobeyed []. Of course, the party charged must have had knowledge of the court's
order.” Dept. of Envtl. Protection of City of New York v Dept. of Envtl. Conservation of State of
N.Y., 70 NY2d 233, 240 [1987] [citations omitted].
As stated by the Court of Appeals:
This court's power to punish for civil and criminal contempt is
found respectively in Judiciary Law § 753(A)(3) and § 750(A)(3).
Although the same act may be punishable as both a civil and
a criminal contempt, the two types of contempt serve separate and
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distinct purposes... A criminal contempt [] involves an offense
against judicial authority and is utilized to protect the integrity of the
judicial process and to compel respect for its mandates []. Unlike
civil contempt, the aim in a criminal contempt proceeding is solely
to punish the contemnor for disobeying a court order, the penalty
imposed being punitive rather than compensatory... In
a criminal contempt proceeding, no such showing [of prejudice] is
needed since the right of the private parties to the litigation is not
the controlling factor. A key distinguishing element between civil
and criminal contempt is the degree of willfulness of the subject
conduct.
To be found guilty of criminal contempt, the contemnor usually
must be shown to have violated the order with a higher degree of
willfulness than is required in a civil contempt proceeding.
Id. [brackets added, and citations omitted]. Here, Defendants expressly agreed to the terms of
the TRO, and there can be no doubt they are all aware of the dispute involving the truck and the
Defendants'
existence of the TRO. Based on the facts set forth herein, "actions can be
interpreted in no other way than as willful and thus support the fmding of criminal contempt as
well."
Casavecchia v Mizrahi, 57 AD3d at 704.
CONCLUSION
In accordance with the foregoing, Plaintiffs respectfully request the Court issue an Order
of both civil and criminal contempt against Defendants, together with an award of fees and costs,
and any other and further relief this Court deems just and proper.
Dated: November 30, 2018.
White Plains, New York
Respectfully Submitted,
TRIV - A & F
HUR . LER III
'
Attorneys for Plaintiffs
1311 Mamaroneck Ave, Suite 170
White Plains, New York 10605
(914) 949-9075
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FILED: NASSAU COUNTY CLERK 12/03/2018 10:42 AM INDEX NO. 613848/2017 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/03/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ---------------------------------------------------------------------x NYC MATERIALS CORP., DTA INDUSTRIES, INC., ANTHONY J. VULPIS, and NYC LEASING Index No.: 613848/2017 GROUP INC., Plaintiffs, -against- CSF MATERIALS CORP., MICHAEL BONSERA, and LISA BONSERA, Defendants. --------------------------------------------------------------------x PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF ORDER TO SHOW CAUSE FOR CONTEMPT TRIVELLA & FORTE, LLP 1311 Mamaroneck Avenue, Ste. 170 White Plains, New York 10605 (914) 949-9075 (914) 949-4752 (facsimile) Arthur J. Muller III aj@tfsllp.com 1 of 6 FILED: NASSAU COUNTY CLERK 12/03/2018 10:42 AM INDEX NO. 613848/2017 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/03/2018 INTRODUCTION Plaintiffs, NYC MATERIALS CORP., DTA INDUSTRIES, INC., and ANTHONY J. VULPIS, respectfully submit this Memorandum of Law in Support of its Order to Show Cause for Contempt against Defendants, jointly and severally. On December 22, 2017 this Court So- Ordered a TRO stipulation which enjoined Defendants from, inter alia, selling or transferring certain vehicles and equipment, including a 2013 Kenworth Truck (Vin Ending 5188). DMV records, attached to the accompanying Affirmation of Arthur J. Muller III, Esq., show that Defendants transferred the 2013 Kenworth Truck in May 2018 to a nonparty while the TRO was in effect. This transfer was in clear violation of the terms of the TRO. Plaintiff Anthony Vulpis is prejudiced by the transfer as a personal guarantor on loans on the Kenworth Truck secured by Volvo Financial Services (Volvo). Volvo has filed a motion to intervene in this action, noting that the subject loan is in default and, as such, is attempting to repossess the truck. At a minimum, Volvo will incur additional expenses as a result of the Defendants’ violation of the TRO, which may be imputed to Vulpis in accordance with the relevant financing agreements. Based on the above, Plaintiffs seek an Order of Criminal and Civil Contempt against Defendants, together with an award of its attorneys’ fees and costs to be determined at a hearing. ARGUMENT I. A CIVIL CONTEMPT ORDER SHOULD BE ISSUED AGAINST DEFENDANTS Defendants should be held in Civil Contempt for their disobedience of this Court’s December 22, 2017 Order. Judiciary Law Section 753 provides this Court with the “power to punish … [any] person …for disobedience to a lawful mandate of court…”. “To sustain a finding of civil contempt, a court must find that the alleged contemnor violated a lawful order of 1 2 of 6 FILED: NASSAU COUNTY CLERK 12/03/2018 10:42 AM INDEX NO. 613848/2017 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/03/2018 the court, clearly expressing an unequivocal mandate, of which that party had knowledge, and that as a result of the violation a right of a party to the litigation was prejudiced [] ‘[I]t is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes or prejudices the rights of a party.’” Casavecchia v Mizrahi, 57 AD3d 702, 703 [2d Dept 2008] [citations omitted]; see Judiciary Law § 753(A)(3). There can be no dispute that the Order unequivocally enjoins Defendants from transferring or selling the subject 2013 Kenworth. As a result of Defendant’s conduct in violating the Court’s Order, Plaintiff’s rights and protections against remedies which will be prosecuted by Volvo for violation of the relevant financing agreements has been impeded and impaired. Such conduct on the part of Defendant was calculated to, or actually did, defeat, impair, impede, or prejudice the Plaintiff's rights, remedies and defenses. See e.g., Inc. Vill. of Plandome Manor v. Ioannou, 54 AD3d 365, 366, 862 NYS2d 592, 593 [2d Dept. 2008]. Defendants’ disobedience has impeded Plaintiffs’ rights, remedies, defenses and ability to honor its obligations with Volvo. Under the terms of the agreement, Volvo may collect any deficiency judgment resulting from the sale of the subject Kenworth and deduct from any sale proceeds its costs and expenses, which will be increased as a result of Defendants’ secreting and selling of the truck. The relevant agreement with Volvo reads, inter alia, in pertinent part: Miscellaneous: …Buyer agrees to pay on demand, all reasonable attorneys’ fees and all other costs and expenses which may be incurred by Lender in enforcement of this Contract…Buyer shall be further liable for all costs and expenses of any nature whatsoever incurred by Lender in any repossession, recovery, storage, repair, sale, release, or other disposition of the property, plus interest … Vulpis Ex. 2 [Credit Sales Contract]. The respective guaranties on the subject vehicle has the 2 3 of 6 FILED: NASSAU COUNTY CLERK 12/03/2018 10:42 AM INDEX NO. 613848/2017 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/03/2018 potential to render Mr. Vulpis liable for such costs and expenses incurred by Volvo. Id. The conduct of Defendants, inter alia, the sale of the truck to a nonparty without Plaintiffs’ permission, has prejudiced Plaintiffs in rendering them unable to fulfill obligations under the contract and guarantees, thus exposing Plaintiffs, specifically Mr. Vulpis, to potential increased liability with respect to any claims by Volvo. Defendants’ violation of the TRO has also caused Plaintiffs to suffer additional legal fees and costs seeking compliance with this Court’s Order. As a result, Plaintiffs are entitled to statutory damages in an amount no less than $250.00, plus attorney’s fees and costs. Jud. Law § 773; Dept. of Envtl. Protection of City of New York v Dept. of Envtl. Conservation of State of N.Y., 70 NY2d 233, 239 [1987] [“A civil contempt is one where the rights of an individual have been harmed by the contemnor's failure to obey a court order []. Any penalty imposed is designed not to punish but, rather, to compensate the injured private party or to coerce compliance with the court's mandate or both.”]; Hamilton v Murphy, 79 AD3d 1210, 1214 [3d Dept 2010] [party adjudge in contempt ordered to pay “costs incurred for the preparation of the contempt motion”]. As set forth in the time records attached to the Muller Affirmation. Plaintiffs incurred $4,025.00 in fees in preparing the motion. “Attorney's fees that are documented and directly related to the contemptuous conduct are generally recoverable unless they are proven excessive or reduced by the court in a reasoned decision.” Gonnard v Guido, 141 AD3d 649, 650 [2d Dept 2016]. When “motion papers contained ample documentation of the fees and costs requested and [nonmovant] did not challenge the amounts, a hearing was not required.” In re Arbitration Between Fid. Brokerage Services, Inc., 294 AD2d 244, 245 [1st Dept 2002]. Plaintiffs also request $206.00 in costs related to DMV search fees and fees for the production of records relative to their FOIL request, plus the $45.00 motion fee for this motion. 3 4 of 6 FILED: NASSAU COUNTY CLERK 12/03/2018 10:42 AM INDEX NO. 613848/2017 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/03/2018 To the extent the Court requests a hearing to determine the contempt or fees, Plaintiffs reserve its right to supplement its fee application as to any additional fees incurred “which flowed directly from plaintiff's contemptuous actions.” Bell v White, 144 AD3d 1235, 1236 [3d Dept 2016], lv to appeal dismissed, 29 NY3d 961 [2017], rearg denied, 29 NY3d 1047 [2017]. Further the individual Defendants were subject to TRO in their individual capacity. Even if they were nonparties, they may be held liable for contempt if they “in any way ‘participated in the willful disobedience of the order.’” In re Grand Jury Subpoena Duces Tecum served upon Morano's of Fifth Ave., Inc., 144 AD2d 252, 256, 533 NYS2d 869, 872 [1st Dept. 1988], citing Citibank, N.A. v. Anthony Lincoln–Mercury, Inc., 86 AD2d 828, 829, 447 NYS2d 262 [1st Dept. 1982]. Based on the above, Plaintiffs ask this Court to issue an order of civil contempt against Defendants, together with an award of fees and costs. II. A CRIMINAL CONTEMPT ORDER SHOULD BE ISSUED AGAINST DEFENDANTS “To sustain a finding of either civil or criminal contempt based on an alleged violation of a court order it is necessary to establish that a lawful order of the court clearly expressing an unequivocal mandate was in effect []. It must also appear with reasonable certainty that the order has been disobeyed []. Of course, the party charged must have had knowledge of the court's order.” Dept. of Envtl. Protection of City of New York v Dept. of Envtl. Conservation of State of N.Y., 70 NY2d 233, 240 [1987] [citations omitted]. As stated by the Court of Appeals: This court's power to punish for civil and criminal contempt is found respectively in Judiciary Law § 753(A)(3) and § 750(A)(3). Although the same act may be punishable as both a civil and a criminal contempt, the two types of contempt serve separate and 4 5 of 6 FILED: NASSAU COUNTY CLERK 12/03/2018 10:42 AM INDEX NO. 613848/2017 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 12/03/2018 distinct purposes... A criminal contempt [] involves an offense against judicial authority and is utilized to protect the integrity of the judicial process and to compel respect for its mandates []. Unlike civil contempt, the aim in a criminal contempt proceeding is solely to punish the contemnor for disobeying a court order, the penalty imposed being punitive rather than compensatory... In a criminal contempt proceeding, no such showing [of prejudice] is needed since the right of the private parties to the litigation is not the controlling factor. A key distinguishing element between civil and criminal contempt is the degree of willfulness of the subject conduct. To be found guilty of criminal contempt, the contemnor usually must be shown to have violated the order with a higher degree of willfulness than is required in a civil contempt proceeding. Id. [brackets added, and citations omitted]. Here, Defendants expressly agreed to the terms of the TRO, and there can be no doubt they are all aware of the dispute involving the truck and the Defendants' existence of the TRO. Based on the facts set forth herein, "actions can be interpreted in no other way than as willful and thus support the fmding of criminal contempt as well." Casavecchia v Mizrahi, 57 AD3d at 704. CONCLUSION In accordance with the foregoing, Plaintiffs respectfully request the Court issue an Order of both civil and criminal contempt against Defendants, together with an award of fees and costs, and any other and further relief this Court deems just and proper. Dated: November 30, 2018. White Plains, New York Respectfully Submitted, TRIV - A & F HUR . LER III ' Attorneys for Plaintiffs 1311 Mamaroneck Ave, Suite 170 White Plains, New York 10605 (914) 949-9075 5 6 of 6