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NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/29/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
MARIAN ROSENFARB and
ALYCE ROSENFARB, Index No. 516447/2017
Plaintiffs,
v.
SEABREEZE REALTY CO., LLC,
JERRY MILLER,
MILLER MANAGEMENT, LLC, and
ALEXEY CHERNYSHKOV,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CONTEMPT
BRACEWELL LLP
1251 Avenue of the Americas
49th Floor
New York, New York 10020-1104
(212) 508-6100
Attorneys for Plaintiffs
August 29, 2017
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Plaintiffs Marian Rosenfarb (“Marian”) and Alyce Rosenfarb (“Alyce”) (together,
“Plaintiffs” or “Rosenfarbs”) respectfully submit this memorandum of law in support of their
motion for criminal and civil contempt of court, pursuant to Sections 750(A)(3) and 753(A)(3) of
the New York Judiciary Law, against Defendant Alexey Chernyshkov (“Defendant” or
“Chernyshkov”), for violating the Temporary Restraining Order issued by this Court on
August 25, 2017 (“TRO”).
PRELIMINARY STATEMENT
Defendant should be held in contempt of court for the continued harassment of the
Rosenfarbs in direct violation of the TRO, which enjoined him from engaging in any form of
harassment or intentional infliction of emotional distress against the Rosenfarbs. Defendant’s
egregious conduct dating back to early 2016 has rendered the Rosenfarbs’ apartment, located at
205 Seabreeze Ave., Apartment 4A, Brooklyn, NY 11224 (“Premises”) unlivable and has led to
the documented deterioration of the Rosenfarbs’ health and well-being. Marian has been
hospitalized and taken to the emergency room on numerous occasions as a direct result of
Defendant’s harassment and infliction of severe emotional and physical distress. Accordingly,
Plaintiffs brought suit and sought a temporary restraining order against Defendant to enjoin him
from engaging in any harassing behaviors. This Court granted the TRO on August 25, 2017, and
Defendant was personally served with the TRO on August 26, 2017. Yet, instead of abiding by
the Court’s order, Defendant has continued unabated harassment of the Rosenfarbs.
Starting in early 2016, Defendant began a campaign of deliberate harassment of the
Rosenfarbs when he was hired to maintain 205 Seabreeze Ave. (“Building”). Defendant, who
lives in Apartment 5A directly above the Rosenfarbs and until recently was the Building’s
superintendent, has subjected the Rosenfarbs to an around-the-clock barrage of noise, including
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non-stop techno music, stomping and banging, and amplified sounds of pornography and other
obscene bodily functions. Defendant’s actions are directed specifically at the Rosenfarbs in an
effort to cause them harm and/or drive them from the Premises. Defendant has repeatedly
threatened the health and safety of the Rosenfarbs, stalked them in and around the Building,
obstructed their path to the elevator and wheelchair ramp of the Building, and intimidated them
with threats of retaliation if they reported him to the authorities. Defendant’s conduct has caused
the Rosenfarbs to live in a perpetual state of fear, stress, anxiety, and emotional distress, and
Defendant has persisted in this conduct in direct violation of the TRO.
As set forth below, the Rosenfarbs have satisfied each of the well-established elements for
civil and criminal contempt of court. First, the TRO is a clear and unequivocal mandate prohibiting
Defendant from engaging in any harassing behavior against the Rosenfarbs. Second, Defendant
has persisted in his harassment of the Rosenfarbs in direct violation of the TRO. Third,
Defendant’s egregious conduct has prejudiced the Rosenfarbs. Fourth, Defendant’s conduct is
willful because he has actual knowledge of the TRO and persists in his behavior anyway.
Accordingly, Plaintiffs request that the Court enter an order of civil and criminal contempt against
Defendant.
STATEMENT OF FACTS
Since the TRO was issued, Defendant has continued to create a hostile and uninhabitable
environment for the Rosenfarbs in direct violation of this Court’s order.
The Rosenfarbs have resided at the Premises since February 2, 1975. See Affidavit of
Alyce Rosenfarb, dated August 21, 2017, NYSCEF Doc. No. 4 (“Rosenfarb Aff. Aug. 21”), ¶ 3.
They are rent stabilized tenants who also qualify for Section 8 housing, and they currently pay
$856.72 per month in rent. Id. The Rosenfarbs’ landlord hired Defendant to maintain the Building
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in early 2016. Id. ¶ 4. Defendant moved into the Building in Apartment 5A, the apartment directly
above the Premises, and he immediately began his campaign of harassment against the Rosenfarbs.
Id. ¶ 4-5. Defendant subjected the Rosenfarbs to a constant barrage of noise, including non-stop
techno music at volumes up to and above 100 decibels, stomping and banging on the floor of
Apartment 5A, and amplified sounds of pornography and flatulence. Id. ¶ 5. Defendant owns
exceptionally loud speakers that he uses to amplify his music, and he hosts large drunken parties
with numerous guests several times a week. Id. Until recently, Defendant was the Building’s
superintendent. Id. ¶ 15.
Marian and Alyce both suffer from health conditions that are exacerbated by stress. Id. ¶ 2.
Marian suffers from heart disease, chest pain, and shortness of breath, which have required several
visits to the emergency room. Id. Alyce suffers from scleroderma and Sjogren’s Disease, both
rare and life-threatening diseases. Id. Due to Defendant’s deliberate scheme of harassment, the
Rosenfarbs are unable to sleep well at night, and the constant fear, sleep deprivation, and associated
stress has caused further deterioration of their health. Id. ¶ 8. Marian now has a heart monitor
implanted due to the rapid, drastic deterioration in her health. Id. ¶ 14. Alyce’s physicians noticed
a severe deterioration in her condition in the period of harassment. Id.
Over the course of 2016, Defendant’s behavior evolved from generally inconsiderate and
intrusive to deliberate actions specifically aimed at harassing the Rosenfarbs. Id. ¶ 7. Defendant
began to taunt and mock the Rosenfarbs every time he saw them in the building, and he blocked
access to the elevator and wheelchair ramp, which Marian requires to enter or exit the building.
Id. ¶ 7, 13. The Rosenfarbs have made multiple calls to the police and filed multiple harassment
complaints due to Defendant’s conduct. Id. ¶ 8. However, Defendant monitored the Building’s
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live camera feed on his phone, and whenever the police would approach the Building, Defendant
would temporarily cease his conduct, only to resume it again as soon as the police left. Id.
Currently, Defendant continues to harass the Rosenfarbs not only in violation of the TRO,
but in violation of another court order as well. Id. ¶ 17-28. On April 25, 2017, Seabreeze Realty
Co., LLC (“Seabreeze Realty”) filed a holdover proceeding against Defendant in the Civil Court
of the City of New York, Kings County, Index No. LT-065902-17/KI (the “Holdover Proceeding”)
because he continued to remain in Apartment 5A despite termination of his employment. See
Affirmation of Salsabil Ahmed in Support of Plaintiffs’ Motion for Preliminary Injunction and
Temporary Restraining Order, dated August 23, 2017, NYSCEF Doc. No. 7 (“Ahmed Aff.
Aug. 23”), ¶ 4. On June 15, 2017, Seabreeze Realty and Defendant entered into a stipulation,
ordered by the Court (the “Stipulation”), to settle the Holdover Proceeding. Id. ¶ 17. As part of
the Stipulation, Defendant agreed to vacate Apartment 5A by September 15, 2017, and the Court
ordered Defendant to “refrain from any contact with the tenants directly below or any action
intended to disturb their tenancy and quiet enjoyment.” Id. Nevertheless, since entering into the
Stipulation, in violation of the Court’s Order, Defendant continued disturbing and harassing the
Rosenfarbs. Id. ¶ 18-28.
On August 25, 2017, the Court granted the TRO against Defendant. See Affidavit of Alyce
Rosenfarb, dated August 29, 2017 (“Rosenfarb Aff. Aug. 29”), ¶ 2. Defendant was personally
served with the file-stamped Order to Show Cause, as well as the underlying Summons and
Complaint and other supporting documents on August 26, 2017, at 12:26 p.m. Id. ¶ 3; see also
Affidavit of Service, attached as Exhibit 3 to the Affirmation of Salsabil Ahmed, dated August 29,
2017 (“Ahmed Aff. Aug. 29”). Immediately after Defendant was served with the TRO, he began
yelling, shouting, wailing, and stomping on the floor of Apartment 5A. Rosenfarb Aff. Aug. 29,
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¶ 4. Defendant continued this conduct well into the night, banging on the floor of Apartment 5A
with heavy objects repeatedly until 4:00 a.m. on August 27. Id. Since being personally served
with the TRO, Defendant has persisted in its defiance by blasting techno music at volumes well
above 30 decibels, blasting sounds of grotesque bodily functions, including flatulence and
belching, and stomping and slamming things on the floor for hours at a time, day and night, each
day with the intention of harassing the Rosenfarbs. Id. ¶ 5.
Defendant’s deliberate terrorizing of the Rosenfarbs has put them in a perpetual state of
fear, and it continues to be detrimental to their health. See id. ¶ 6. They have been forced to spend
their days wandering through the neighborhood in order to escape the harassment, and on August
28, 2017, Marian had to visit her cardiologist because Defendant’s harassment caused heart
palpitations and stress headaches. Id. ¶ 6-7. The Rosenfarbs sought the TRO to reclaim the use
and enjoyment of their home, and they now respectfully request that Defendant be found both
civilly and criminally in contempt of court for his continued disregard of court orders.
ARGUMENT
I. Chernyshkov Should Be Held In Contempt Of Court For Violating The TRO
The law is clear that a court may enforce and reaffirm its own directives through its
contempt powers. See Judiciary Law § 753(A). Under Section 753(A) of the Judiciary Law, a
court of record “has power to punish, by fine and imprisonment, or either, a neglect or violation
of duty, or other misconduct, by which a right or remedy of a party to a civil action or special
proceeding, pending the court may be defeated, impaired, impeded, or prejudiced” in certain
circumstances. One such ground is found at Section 753(A)(3):
A party to the action or special proceeding, any attorney, counsellor,
or other person, for the non-payment of a sum of money, ordered or
adjudged by the court to be paid, in a case where by law execution
cannot be awarded for the collection of such sum except as
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otherwise specifically provided by the civil practice laws and rules;
or for any other disobedience to a lawful mandate of the court.
(emphasis added).
In order to prove that Section 753(A)(3) has been violated and that the offending party is
in contempt of court, “‘a lawful judicial order expressing an unequivocal mandate must have been
in effect and disobeyed . . . and it must be demonstrated that its failure to comply therewith
prejudiced the rights of a party to the litigation.’” 24 Seven Inc. v. Fiorello, 14 Misc. 1221A,
1221A (N.Y. Sup. Ct. 2006) (quoting Attonito v. Maldonado, 3 A.D.3d 415, 418 (1st Dep’t 2004));
see also McCormick v. Axelrod, 59 N.Y.2d 574, 583 (1983) (“In order to find that contempt has
occurred in a given case, it must be determined that a lawful order of the court, clearly expressing
an unequivocal mandate, was in effect. It must appear, with reasonable certainty, that the order has
been disobeyed. . . . Moreover, the party to be held in contempt must have had knowledge of the
court’s order, although it is not necessary that the order actually have been served upon the
party. . . . Finally, prejudice to the right of a party to the litigation must be demonstrated.”).
A court also has the power to punish for criminal contempt, “a person guilty of . . . willful
disobedience to its lawful mandate.” Judiciary Law § 750(A)(3). The same act may give rise to
both criminal and civil contempt. See Town of Copake v. 13 Lackawanna Properties, LLC, 73
A.D.3d 1308, 1309 (3rd Dep’t 2010). Criminal contempt must be proven beyond a reasonable
doubt, whereas civil contempt must be proven by clear and convincing evidence. Id. Furthermore,
to establish criminal contempt, the plaintiff must establish the willfulness of the conduct of the
accused, whereas to establish civil contempt, the plaintiff must only establish that the rights of a
party have been prejudiced. Id.
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A. A Lawful Judicial Order Expressing An Unequivocal Mandate Was In Effect
Temporary restraining orders clearly represent lawful judicial orders that, when violated,
are the subject of contempt proceedings. See, e.g., 24 Seven Inc., 14 Misc. at 1221A (holding a
party in civil contempt for violating a temporary restraining order); Town of Copake v. 13
Lackawanna Properties, LLC, 73 A.D.3d 1308, 1309 (3rd Dep’t 2010) (affirming the Supreme
Court’s finding of civil and criminal contempt for violations of a temporary restraining order).
On August 25, 2017, this Court entered the TRO, which is a lawful judicial order
expressing an unequivocal mandate. The TRO has been in effect since its entry. See Order to
Show Cause attached as Exhibit 1 to Ahmed Aff. Aug. 29. The TRO was served in person on
Chernyshkov on August 26, 2017. See Ahmed Aff. Aug. 29, Ex. 3 at 1. There is no question that
Chernyshkov was on notice of the TRO and his obligations thereunder.
B. Defendant Disobeyed The TRO
Under Section (1) of the TRO, Defendant is enjoined from engaging in any form of
harassment against the Rosenfarbs. Ahmed Aff. Aug. 29, Ex. 1 at 2. Furthermore, under Section
(2) of the TRO, Defendant is enjoined from engaging in any of the following activities:
a. playing loud music above 30 decibels;
b. yelling at the Rosenfarbs;
c. playing sounds of obscene noises, including pornography, flatulence, and
other bodily functions with the intention of bothering or annoying the
Rosenfarbs;
d. stomping and banging on the floor of Apartment 5A, located at 205
Seabreeze Ave., Brooklyn, NY 11224 (the “Building”);
e. stalking the Rosenfarbs as they enter and exit the Building;
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f. obstructing the path, including the wheelchair ramp, to and from the
Rosenfarbs’ apartment, Apartment 4A located in the Building; and
g. threatening the health and safety of the Rosenfarbs. Id.
Since being personally served with the TRO on August 26, 2017 at 12:26 p.m.,
Chernyshkov has continued to blast sounds of bodily functions and other obscene noises from his
speakers. See Rosenfarb Aff. Aug. 29, ¶ 5. He has persisted in playing techno music at volumes
well above 30 decibels. Id. Immediately after being served with the TRO on August 26,
Chernyshkov began yelling, shouting, wailing, and stomping on the floor of Apartment 5A.
Id. ¶ 4. This behavior continued well into the early hours of August 27, as Chernyshkov banged
on the floor of Apartment 5A with heavy objects repeatedly until 4:00 a.m. Id.
The Court has granted motions for contempt under similar circumstances. See, e.g., Lu v.
Betancourt, 116 A.D.2d 492, 492-93 (1st Dep’t 1986) (upholding decision finding landlord in civil
contempt for failure to comply with a court order to restore heat and hot water to tenants); Laundra-
Vend Machines, Inc. v. J.R.D. Management Corp., 54 A.D.2d 973, 973 (2nd Dep’t 1976)
(affirming trial court’s holding landlord in civil contempt unless landlord placed plaintiff in
possession of the laundry room of their apartment building pursuant to plaintiff’s lease); Sabella
4e74 Partnership v. Learnard, N.Y. Slip. Op. 50456(U) (App. Term, 1st Dep’t Nov. 14, 2002)
(upholding civil contempt where landlord failed to comply with court order to restore elevator
service in multiple dwelling premises by the date directed); Board of Ed. of Half Hollow Hills
Cent. School Dist., Towns of Huntington and Babylon v. Roseman, 52 A.D.2d 855, 855-56 (2nd
Dep’t 1976) (upholding findings of criminal contempt for violations of a temporary restraining
order); Town of Copake v. 13 Lackawanna Properties, LLC, 73 A.D.3d 1308 (3rd Dep’t 2010)
(affirming findings of civil and criminal contempt for violations of a temporary restraining order).
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C. Defendant’s Failure To Comply With The Temporary Restraining Order Has
Prejudiced The Rights Of The Plaintiffs
“The mere act of disobeying a temporary restraining order is sufficient to sustain a finding
of civil contempt, regardless of motive, where … it was calculated to or actually did defeat, impair,
impede, or prejudice the plaintiff’s rights.” Goldsmith v. Goldsmith, 261 A.D.2d 576, 577 (2nd
Dep’t 1999). Where a temporary restraining order expresses a clear and unequivocal mandate, a
violation of the temporary restraining order is sufficient for a finding of civil contempt. See Town
of Copake, 73 A.D.2d at 1309-10.
Here, the TRO clearly enjoins Defendant from, among other things, playing loud music
above 30 decibels, yelling at the Rosenfarbs, playing sounds of obscene noises and bodily
functions with the intention of bothering or annoying the Rosenfarbs, stomping and banging on
the floor of Apartment 5A, and threatening the health and safety of the Rosenfarbs. However,
Defendant continues to, among other things, blast music and grotesque sounds at all hours of the
night, depriving Plaintiffs of any opportunity to sleep. See Rosenfarb Aff. Aug. 29, ¶ 5.
Defendant’s actions place him in clear violation of the TRO and places the Rosenfarbs in a constant
state of fear. Both Marian and Alyce Rosenfarb suffer from health conditions that are exacerbated
by stress, and Defendant’s egregious behavior is a constant threat to the Rosenfarbs’ health and
safety. Id. ¶ 7; see also Rosenfarb Aff. Aug. 21, ¶ 2, 14. On August 28, 2017, Marian was forced
to see her cardiologist for heart palpitations and stress headaches due to Defendant’s harassment.
D. Defendant’s Conduct In Violating The Temporary Restraining Order Was
Willful
Willful disobedience of a court order is an essential element of criminal contempt. Gomes
v. Gomes, 106 A.D.3d 868, 869 (2nd Dep’t 2013). “Knowingly failing to comply with a court
order gives rise to an inference of willfulness.” Id.
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Here, Defendant was personally served with the TRO, which clearly and unequivocally
states what actions he is not permitted to take. Yet Defendant still persists in the conduct described
above with the intention of bothering or annoying the Rosenfarbs, stomping and banging on the
floor of Apartment 5A, and threatening the health and safety of the Rosenfarbs. See Rosenfarb
Aff. Aug. 29, ¶ 4-7. All of these actions are in direct violation of the TRO and are undertaken as
part of a deliberate plan to harass the Rosenfarbs.
Furthermore, Defendant has a history of failing to halt his egregious conduct. The
Stipulation entered into on June 15, 2017, between Seabreeze Realty and Defendant to settle the
Holdover Proceeding, required Defendant to vacate Apartment 5A by September 15, 2017 and, in
the meantime, to “refrain from any contact with the tenants directly below or any action intended
to disturb their tenancy and quiet enjoyment.” See Ahmed Aff. Aug. 23, ¶ 4. Defendant did not
cease his harassment of the Rosenfarbs pursuant to the Stipulation, see Rosenfarb Aff. Aug. 21,
¶ 17-28, and he has not ceased his harassment of the Rosenfarbs now, pursuant to the TRO, see
Rosenfarb Aff. Aug. 29, ¶ 4-8.
CONCLUSION
For all of the foregoing reasons, Plaintiffs respectfully request that the Court hold
Defendant both civilly and criminally in contempt of Court.
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Dated: August 29, 2017
Respectfully submitted,
BRACEWELL LLP
By: /s/ Brendan J. Derr
Brendan J. Derr
1251 Avenue of the Americas
49th Floor
New York, New York 10020-1104
(212) 508-6100
Attorneys for Plaintiffs
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Preview
FILED: KINGS COUNTY CLERK 08/29/2017 08:14 PM INDEX NO. 516447/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/29/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS MARIAN ROSENFARB and ALYCE ROSENFARB, Index No. 516447/2017 Plaintiffs, v. SEABREEZE REALTY CO., LLC, JERRY MILLER, MILLER MANAGEMENT, LLC, and ALEXEY CHERNYSHKOV, Defendants. MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CONTEMPT BRACEWELL LLP 1251 Avenue of the Americas 49th Floor New York, New York 10020-1104 (212) 508-6100 Attorneys for Plaintiffs August 29, 2017 1 of 12 FILED: KINGS COUNTY CLERK 08/29/2017 08:14 PM INDEX NO. 516447/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/29/2017 Plaintiffs Marian Rosenfarb (“Marian”) and Alyce Rosenfarb (“Alyce”) (together, “Plaintiffs” or “Rosenfarbs”) respectfully submit this memorandum of law in support of their motion for criminal and civil contempt of court, pursuant to Sections 750(A)(3) and 753(A)(3) of the New York Judiciary Law, against Defendant Alexey Chernyshkov (“Defendant” or “Chernyshkov”), for violating the Temporary Restraining Order issued by this Court on August 25, 2017 (“TRO”). PRELIMINARY STATEMENT Defendant should be held in contempt of court for the continued harassment of the Rosenfarbs in direct violation of the TRO, which enjoined him from engaging in any form of harassment or intentional infliction of emotional distress against the Rosenfarbs. Defendant’s egregious conduct dating back to early 2016 has rendered the Rosenfarbs’ apartment, located at 205 Seabreeze Ave., Apartment 4A, Brooklyn, NY 11224 (“Premises”) unlivable and has led to the documented deterioration of the Rosenfarbs’ health and well-being. Marian has been hospitalized and taken to the emergency room on numerous occasions as a direct result of Defendant’s harassment and infliction of severe emotional and physical distress. Accordingly, Plaintiffs brought suit and sought a temporary restraining order against Defendant to enjoin him from engaging in any harassing behaviors. This Court granted the TRO on August 25, 2017, and Defendant was personally served with the TRO on August 26, 2017. Yet, instead of abiding by the Court’s order, Defendant has continued unabated harassment of the Rosenfarbs. Starting in early 2016, Defendant began a campaign of deliberate harassment of the Rosenfarbs when he was hired to maintain 205 Seabreeze Ave. (“Building”). Defendant, who lives in Apartment 5A directly above the Rosenfarbs and until recently was the Building’s superintendent, has subjected the Rosenfarbs to an around-the-clock barrage of noise, including -2- 2 of 12 FILED: KINGS COUNTY CLERK 08/29/2017 08:14 PM INDEX NO. 516447/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/29/2017 non-stop techno music, stomping and banging, and amplified sounds of pornography and other obscene bodily functions. Defendant’s actions are directed specifically at the Rosenfarbs in an effort to cause them harm and/or drive them from the Premises. Defendant has repeatedly threatened the health and safety of the Rosenfarbs, stalked them in and around the Building, obstructed their path to the elevator and wheelchair ramp of the Building, and intimidated them with threats of retaliation if they reported him to the authorities. Defendant’s conduct has caused the Rosenfarbs to live in a perpetual state of fear, stress, anxiety, and emotional distress, and Defendant has persisted in this conduct in direct violation of the TRO. As set forth below, the Rosenfarbs have satisfied each of the well-established elements for civil and criminal contempt of court. First, the TRO is a clear and unequivocal mandate prohibiting Defendant from engaging in any harassing behavior against the Rosenfarbs. Second, Defendant has persisted in his harassment of the Rosenfarbs in direct violation of the TRO. Third, Defendant’s egregious conduct has prejudiced the Rosenfarbs. Fourth, Defendant’s conduct is willful because he has actual knowledge of the TRO and persists in his behavior anyway. Accordingly, Plaintiffs request that the Court enter an order of civil and criminal contempt against Defendant. STATEMENT OF FACTS Since the TRO was issued, Defendant has continued to create a hostile and uninhabitable environment for the Rosenfarbs in direct violation of this Court’s order. The Rosenfarbs have resided at the Premises since February 2, 1975. See Affidavit of Alyce Rosenfarb, dated August 21, 2017, NYSCEF Doc. No. 4 (“Rosenfarb Aff. Aug. 21”), ¶ 3. They are rent stabilized tenants who also qualify for Section 8 housing, and they currently pay $856.72 per month in rent. Id. The Rosenfarbs’ landlord hired Defendant to maintain the Building -3- 3 of 12 FILED: KINGS COUNTY CLERK 08/29/2017 08:14 PM INDEX NO. 516447/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/29/2017 in early 2016. Id. ¶ 4. Defendant moved into the Building in Apartment 5A, the apartment directly above the Premises, and he immediately began his campaign of harassment against the Rosenfarbs. Id. ¶ 4-5. Defendant subjected the Rosenfarbs to a constant barrage of noise, including non-stop techno music at volumes up to and above 100 decibels, stomping and banging on the floor of Apartment 5A, and amplified sounds of pornography and flatulence. Id. ¶ 5. Defendant owns exceptionally loud speakers that he uses to amplify his music, and he hosts large drunken parties with numerous guests several times a week. Id. Until recently, Defendant was the Building’s superintendent. Id. ¶ 15. Marian and Alyce both suffer from health conditions that are exacerbated by stress. Id. ¶ 2. Marian suffers from heart disease, chest pain, and shortness of breath, which have required several visits to the emergency room. Id. Alyce suffers from scleroderma and Sjogren’s Disease, both rare and life-threatening diseases. Id. Due to Defendant’s deliberate scheme of harassment, the Rosenfarbs are unable to sleep well at night, and the constant fear, sleep deprivation, and associated stress has caused further deterioration of their health. Id. ¶ 8. Marian now has a heart monitor implanted due to the rapid, drastic deterioration in her health. Id. ¶ 14. Alyce’s physicians noticed a severe deterioration in her condition in the period of harassment. Id. Over the course of 2016, Defendant’s behavior evolved from generally inconsiderate and intrusive to deliberate actions specifically aimed at harassing the Rosenfarbs. Id. ¶ 7. Defendant began to taunt and mock the Rosenfarbs every time he saw them in the building, and he blocked access to the elevator and wheelchair ramp, which Marian requires to enter or exit the building. Id. ¶ 7, 13. The Rosenfarbs have made multiple calls to the police and filed multiple harassment complaints due to Defendant’s conduct. Id. ¶ 8. However, Defendant monitored the Building’s -4- 4 of 12 FILED: KINGS COUNTY CLERK 08/29/2017 08:14 PM INDEX NO. 516447/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/29/2017 live camera feed on his phone, and whenever the police would approach the Building, Defendant would temporarily cease his conduct, only to resume it again as soon as the police left. Id. Currently, Defendant continues to harass the Rosenfarbs not only in violation of the TRO, but in violation of another court order as well. Id. ¶ 17-28. On April 25, 2017, Seabreeze Realty Co., LLC (“Seabreeze Realty”) filed a holdover proceeding against Defendant in the Civil Court of the City of New York, Kings County, Index No. LT-065902-17/KI (the “Holdover Proceeding”) because he continued to remain in Apartment 5A despite termination of his employment. See Affirmation of Salsabil Ahmed in Support of Plaintiffs’ Motion for Preliminary Injunction and Temporary Restraining Order, dated August 23, 2017, NYSCEF Doc. No. 7 (“Ahmed Aff. Aug. 23”), ¶ 4. On June 15, 2017, Seabreeze Realty and Defendant entered into a stipulation, ordered by the Court (the “Stipulation”), to settle the Holdover Proceeding. Id. ¶ 17. As part of the Stipulation, Defendant agreed to vacate Apartment 5A by September 15, 2017, and the Court ordered Defendant to “refrain from any contact with the tenants directly below or any action intended to disturb their tenancy and quiet enjoyment.” Id. Nevertheless, since entering into the Stipulation, in violation of the Court’s Order, Defendant continued disturbing and harassing the Rosenfarbs. Id. ¶ 18-28. On August 25, 2017, the Court granted the TRO against Defendant. See Affidavit of Alyce Rosenfarb, dated August 29, 2017 (“Rosenfarb Aff. Aug. 29”), ¶ 2. Defendant was personally served with the file-stamped Order to Show Cause, as well as the underlying Summons and Complaint and other supporting documents on August 26, 2017, at 12:26 p.m. Id. ¶ 3; see also Affidavit of Service, attached as Exhibit 3 to the Affirmation of Salsabil Ahmed, dated August 29, 2017 (“Ahmed Aff. Aug. 29”). Immediately after Defendant was served with the TRO, he began yelling, shouting, wailing, and stomping on the floor of Apartment 5A. Rosenfarb Aff. Aug. 29, -5- 5 of 12 FILED: KINGS COUNTY CLERK 08/29/2017 08:14 PM INDEX NO. 516447/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/29/2017 ¶ 4. Defendant continued this conduct well into the night, banging on the floor of Apartment 5A with heavy objects repeatedly until 4:00 a.m. on August 27. Id. Since being personally served with the TRO, Defendant has persisted in its defiance by blasting techno music at volumes well above 30 decibels, blasting sounds of grotesque bodily functions, including flatulence and belching, and stomping and slamming things on the floor for hours at a time, day and night, each day with the intention of harassing the Rosenfarbs. Id. ¶ 5. Defendant’s deliberate terrorizing of the Rosenfarbs has put them in a perpetual state of fear, and it continues to be detrimental to their health. See id. ¶ 6. They have been forced to spend their days wandering through the neighborhood in order to escape the harassment, and on August 28, 2017, Marian had to visit her cardiologist because Defendant’s harassment caused heart palpitations and stress headaches. Id. ¶ 6-7. The Rosenfarbs sought the TRO to reclaim the use and enjoyment of their home, and they now respectfully request that Defendant be found both civilly and criminally in contempt of court for his continued disregard of court orders. ARGUMENT I. Chernyshkov Should Be Held In Contempt Of Court For Violating The TRO The law is clear that a court may enforce and reaffirm its own directives through its contempt powers. See Judiciary Law § 753(A). Under Section 753(A) of the Judiciary Law, a court of record “has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending the court may be defeated, impaired, impeded, or prejudiced” in certain circumstances. One such ground is found at Section 753(A)(3): A party to the action or special proceeding, any attorney, counsellor, or other person, for the non-payment of a sum of money, ordered or adjudged by the court to be paid, in a case where by law execution cannot be awarded for the collection of such sum except as -6- 6 of 12 FILED: KINGS COUNTY CLERK 08/29/2017 08:14 PM INDEX NO. 516447/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/29/2017 otherwise specifically provided by the civil practice laws and rules; or for any other disobedience to a lawful mandate of the court. (emphasis added). In order to prove that Section 753(A)(3) has been violated and that the offending party is in contempt of court, “‘a lawful judicial order expressing an unequivocal mandate must have been in effect and disobeyed . . . and it must be demonstrated that its failure to comply therewith prejudiced the rights of a party to the litigation.’” 24 Seven Inc. v. Fiorello, 14 Misc. 1221A, 1221A (N.Y. Sup. Ct. 2006) (quoting Attonito v. Maldonado, 3 A.D.3d 415, 418 (1st Dep’t 2004)); see also McCormick v. Axelrod, 59 N.Y.2d 574, 583 (1983) (“In order to find that contempt has occurred in a given case, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. It must appear, with reasonable certainty, that the order has been disobeyed. . . . Moreover, the party to be held in contempt must have had knowledge of the court’s order, although it is not necessary that the order actually have been served upon the party. . . . Finally, prejudice to the right of a party to the litigation must be demonstrated.”). A court also has the power to punish for criminal contempt, “a person guilty of . . . willful disobedience to its lawful mandate.” Judiciary Law § 750(A)(3). The same act may give rise to both criminal and civil contempt. See Town of Copake v. 13 Lackawanna Properties, LLC, 73 A.D.3d 1308, 1309 (3rd Dep’t 2010). Criminal contempt must be proven beyond a reasonable doubt, whereas civil contempt must be proven by clear and convincing evidence. Id. Furthermore, to establish criminal contempt, the plaintiff must establish the willfulness of the conduct of the accused, whereas to establish civil contempt, the plaintiff must only establish that the rights of a party have been prejudiced. Id. -7- 7 of 12 FILED: KINGS COUNTY CLERK 08/29/2017 08:14 PM INDEX NO. 516447/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/29/2017 A. A Lawful Judicial Order Expressing An Unequivocal Mandate Was In Effect Temporary restraining orders clearly represent lawful judicial orders that, when violated, are the subject of contempt proceedings. See, e.g., 24 Seven Inc., 14 Misc. at 1221A (holding a party in civil contempt for violating a temporary restraining order); Town of Copake v. 13 Lackawanna Properties, LLC, 73 A.D.3d 1308, 1309 (3rd Dep’t 2010) (affirming the Supreme Court’s finding of civil and criminal contempt for violations of a temporary restraining order). On August 25, 2017, this Court entered the TRO, which is a lawful judicial order expressing an unequivocal mandate. The TRO has been in effect since its entry. See Order to Show Cause attached as Exhibit 1 to Ahmed Aff. Aug. 29. The TRO was served in person on Chernyshkov on August 26, 2017. See Ahmed Aff. Aug. 29, Ex. 3 at 1. There is no question that Chernyshkov was on notice of the TRO and his obligations thereunder. B. Defendant Disobeyed The TRO Under Section (1) of the TRO, Defendant is enjoined from engaging in any form of harassment against the Rosenfarbs. Ahmed Aff. Aug. 29, Ex. 1 at 2. Furthermore, under Section (2) of the TRO, Defendant is enjoined from engaging in any of the following activities: a. playing loud music above 30 decibels; b. yelling at the Rosenfarbs; c. playing sounds of obscene noises, including pornography, flatulence, and other bodily functions with the intention of bothering or annoying the Rosenfarbs; d. stomping and banging on the floor of Apartment 5A, located at 205 Seabreeze Ave., Brooklyn, NY 11224 (the “Building”); e. stalking the Rosenfarbs as they enter and exit the Building; -8- 8 of 12 FILED: KINGS COUNTY CLERK 08/29/2017 08:14 PM INDEX NO. 516447/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/29/2017 f. obstructing the path, including the wheelchair ramp, to and from the Rosenfarbs’ apartment, Apartment 4A located in the Building; and g. threatening the health and safety of the Rosenfarbs. Id. Since being personally served with the TRO on August 26, 2017 at 12:26 p.m., Chernyshkov has continued to blast sounds of bodily functions and other obscene noises from his speakers. See Rosenfarb Aff. Aug. 29, ¶ 5. He has persisted in playing techno music at volumes well above 30 decibels. Id. Immediately after being served with the TRO on August 26, Chernyshkov began yelling, shouting, wailing, and stomping on the floor of Apartment 5A. Id. ¶ 4. This behavior continued well into the early hours of August 27, as Chernyshkov banged on the floor of Apartment 5A with heavy objects repeatedly until 4:00 a.m. Id. The Court has granted motions for contempt under similar circumstances. See, e.g., Lu v. Betancourt, 116 A.D.2d 492, 492-93 (1st Dep’t 1986) (upholding decision finding landlord in civil contempt for failure to comply with a court order to restore heat and hot water to tenants); Laundra- Vend Machines, Inc. v. J.R.D. Management Corp., 54 A.D.2d 973, 973 (2nd Dep’t 1976) (affirming trial court’s holding landlord in civil contempt unless landlord placed plaintiff in possession of the laundry room of their apartment building pursuant to plaintiff’s lease); Sabella 4e74 Partnership v. Learnard, N.Y. Slip. Op. 50456(U) (App. Term, 1st Dep’t Nov. 14, 2002) (upholding civil contempt where landlord failed to comply with court order to restore elevator service in multiple dwelling premises by the date directed); Board of Ed. of Half Hollow Hills Cent. School Dist., Towns of Huntington and Babylon v. Roseman, 52 A.D.2d 855, 855-56 (2nd Dep’t 1976) (upholding findings of criminal contempt for violations of a temporary restraining order); Town of Copake v. 13 Lackawanna Properties, LLC, 73 A.D.3d 1308 (3rd Dep’t 2010) (affirming findings of civil and criminal contempt for violations of a temporary restraining order). -9- 9 of 12 FILED: KINGS COUNTY CLERK 08/29/2017 08:14 PM INDEX NO. 516447/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/29/2017 C. Defendant’s Failure To Comply With The Temporary Restraining Order Has Prejudiced The Rights Of The Plaintiffs “The mere act of disobeying a temporary restraining order is sufficient to sustain a finding of civil contempt, regardless of motive, where … it was calculated to or actually did defeat, impair, impede, or prejudice the plaintiff’s rights.” Goldsmith v. Goldsmith, 261 A.D.2d 576, 577 (2nd Dep’t 1999). Where a temporary restraining order expresses a clear and unequivocal mandate, a violation of the temporary restraining order is sufficient for a finding of civil contempt. See Town of Copake, 73 A.D.2d at 1309-10. Here, the TRO clearly enjoins Defendant from, among other things, playing loud music above 30 decibels, yelling at the Rosenfarbs, playing sounds of obscene noises and bodily functions with the intention of bothering or annoying the Rosenfarbs, stomping and banging on the floor of Apartment 5A, and threatening the health and safety of the Rosenfarbs. However, Defendant continues to, among other things, blast music and grotesque sounds at all hours of the night, depriving Plaintiffs of any opportunity to sleep. See Rosenfarb Aff. Aug. 29, ¶ 5. Defendant’s actions place him in clear violation of the TRO and places the Rosenfarbs in a constant state of fear. Both Marian and Alyce Rosenfarb suffer from health conditions that are exacerbated by stress, and Defendant’s egregious behavior is a constant threat to the Rosenfarbs’ health and safety. Id. ¶ 7; see also Rosenfarb Aff. Aug. 21, ¶ 2, 14. On August 28, 2017, Marian was forced to see her cardiologist for heart palpitations and stress headaches due to Defendant’s harassment. D. Defendant’s Conduct In Violating The Temporary Restraining Order Was Willful Willful disobedience of a court order is an essential element of criminal contempt. Gomes v. Gomes, 106 A.D.3d 868, 869 (2nd Dep’t 2013). “Knowingly failing to comply with a court order gives rise to an inference of willfulness.” Id. -10- 10 of 12 FILED: KINGS COUNTY CLERK 08/29/2017 08:14 PM INDEX NO. 516447/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/29/2017 Here, Defendant was personally served with the TRO, which clearly and unequivocally states what actions he is not permitted to take. Yet Defendant still persists in the conduct described above with the intention of bothering or annoying the Rosenfarbs, stomping and banging on the floor of Apartment 5A, and threatening the health and safety of the Rosenfarbs. See Rosenfarb Aff. Aug. 29, ¶ 4-7. All of these actions are in direct violation of the TRO and are undertaken as part of a deliberate plan to harass the Rosenfarbs. Furthermore, Defendant has a history of failing to halt his egregious conduct. The Stipulation entered into on June 15, 2017, between Seabreeze Realty and Defendant to settle the Holdover Proceeding, required Defendant to vacate Apartment 5A by September 15, 2017 and, in the meantime, to “refrain from any contact with the tenants directly below or any action intended to disturb their tenancy and quiet enjoyment.” See Ahmed Aff. Aug. 23, ¶ 4. Defendant did not cease his harassment of the Rosenfarbs pursuant to the Stipulation, see Rosenfarb Aff. Aug. 21, ¶ 17-28, and he has not ceased his harassment of the Rosenfarbs now, pursuant to the TRO, see Rosenfarb Aff. Aug. 29, ¶ 4-8. CONCLUSION For all of the foregoing reasons, Plaintiffs respectfully request that the Court hold Defendant both civilly and criminally in contempt of Court. -11- 11 of 12 FILED: KINGS COUNTY CLERK 08/29/2017 08:14 PM INDEX NO. 516447/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/29/2017 Dated: August 29, 2017 Respectfully submitted, BRACEWELL LLP By: /s/ Brendan J. Derr Brendan J. Derr 1251 Avenue of the Americas 49th Floor New York, New York 10020-1104 (212) 508-6100 Attorneys for Plaintiffs -12- 12 of 12