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FILED: NEW YORK COUNTY CLERK 05/16/2017 03:24 PM INDEX NO. 151093/2017
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 05/16/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
MICHAEL GOLDENBERG and Index No.: 151093/2017
RACHEL GOLDENBERG, (Hon. Arlene P. Bluth)
Petitioners, (Motion Sequence No. 2)
v.
CHANA WEISZ a/k/a SHAINDY LAX, MOSHE
LAX, DIAMOND DYNAMICS, LLC, and
MADISON AVENUE DIAMONDS, LLC d/b/a
IVANKA TRUMP FINE JEWELRY,
Respondents.
MEMORANDUM OF LAW IN SUPPORT OF ORDER TO SHOW CAUSE
TO PUNISH RESPONDENTS FOR CONTEMPT
MENDEL ZILBERBERG & ASSOCIATES, P.C.
Mendel Zilberberg
Samuel Karpel
4405 17th Avenue
Brooklyn, New York 11204
Telephone (718) 256-2000
Facsimile (718) 256-7900
Attorneys for Petitioners Michael Goldenberg and Rachel Goldenberg
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INTRODUCTION
This memorandum is respectfully submitted in support of Petitioners Michael
Goldenberg and Rachel Goldenberg’s (collectively, the “Petitioners”) motion brought by order to
show cause for contempt against Respondents Chana Weisz a/k/a Shaindy Lax, Moshe Lax,
Diamond Dynamics, LLC and Madison Avenue Diamonds, LLC d/b/a Ivanka Trump Fine
Jewelry (collectively, “Respondents”) for their willful refusal to obey this Court’s Order and
Judgment dated April 27, 2017.
There can be no dispute that the Respondents willfully failed or refused to obey the
Court’s Order and Judgment dated April 27, 2017, which was clear and unequivocal and
directed, inter alia, that Respondents shall (a) “within seven days of service of this Order deliver
to City Marshal Frank Siracusa, 6913 New Utrecht Avenue, Brooklyn, New York 11288,
documents representing all of Chana Weisz a/k/a Shaindy Lax’s membership interests in
Diamond Dynamics, LLC and Madison Avenue Diamonds, LLC d/b/a Ivanka Trump Fine
Jewelry, in order for the City Marshal to effectuate a public sale of the membership interests”;
and (b) “within seven days of service of this Order deliver to City Marshal Frank Siracusa, 6913
New Utrecht Avenue, Brooklyn, New York 11288, all documents relevant to determining the
value of the membership interests in Diamond Dynamics, LLC and Madison Avenue Diamonds,
LLC d/b/a Ivanka Trump Fine Jewelry…”. See Aff. of Karpel, Exhibit 3, Order and Judgment
dated April 26, 2017.
Accordingly, this Court should find and hold the Respondents in contempt. Furthermore,
under the egregious circumstances of this case, as set forth in the accompanying Affirmation of
Petitioners’ counsel, the Court should not only hold the Respondents in contempt and impose an
appropriate fine, including, an award of attorney’s fees, but also, in the event the Respondents do
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not fully and faithfully purge their contempt of this Court’s Order and Judgment, this Court
should incarcerate Moshe Lax and Chana Weisz a/k/a Shaindy Lax in their individual capacity
and as member(s) and/or managers(s) Diamond Dynamics, LLC and Madison Avenue
Diamonds, LLC d/b/a Ivanka Trump Fine Jewelry, until the Respondents have fully complied
with the Order and Judgment of this Court dated April 26, 2017.
ARGUMENT
A. THE RESPONDENTS SHOULD BE HELD IN CONTEMPT FOR THEIR
VIOLATION OF THE COURT’S ORDER AND JUDGMENT DATED APRIL 27,
2017
The Respondents should be held in contempt for their flagrant and blatant violation of the
Court’s Order and Judgment dated April 27, 2017.
The purpose of civil contempt is to compel compliance with a court order or compensate
a party injured by the disobedience of a court order. State of New York v Unique Ideas, 44
N.Y.2d 345, 349 (1978). “[T]o prevail on [such] a motion ... the movant must demonstrate that
the party charged with the contempt violated a clear and unequivocal mandate of the court,
thereby prejudicing a right of another party to the litigation.” Judiciary Law § 753(A); Riverside
Cap. Advisers, Inc. v First Secured Cap. Corp., 43 A.D. 3d 1023, 1024 (2d Dept 2007).
Under CPLR 5215, disobedience of an order related to enforcement of a money judgment
is punishable as contempt of court. See CPLR § 5215. Generally, “the mere act of disobedience,
regardless of motive, is sufficient to sustain a finding of civil contempt if such disobedience
defeats, impairs, impedes or prejudices the rights of a party.” Yalkowsky v. Yalkowsky, 93 A.D.2d
834, 835 (2d Dept 1983).
In the instant action, it is undisputed that the Respondents violated a clear and
unequivocal mandate of the court by failing to (a) within seven days of the service of the Order
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and Judgment deliver to the City Marshal documents representing all of Chana Weisz a/k/a
Shaindy Lax’s membership interests in Diamond Dynamics, LLC and Madison Avenue
Diamonds, LLC d/b/a Ivanka Trump Fine Jewelry, in order for the City Marshal to effectuate a
public sale of the membership interests; and (b) within seven days of the service of the Order and
Judgment deliver to the City Marshal all documents relevant to determining the value of the
membership interests in Diamond Dynamics, LLC and Madison Avenue Diamonds, LLC d/b/a
Ivanka Trump Fine Jewelry.
Petitioners have demonstrated that Moshe Lax and Chana Weisz a/k/a Shaindy Lax’s
failure to abide by the Court’s Order and Judgment is willful, given their conduct and history of
non-compliance with other orders and subpoenas. See e.g. Feuer v. Feuer, 46 A.D.2d 892 (2d
Dept. 1974) (defendant’s history of disingenuous behavior and noncompliance with provisions in
judgment sufficient to hold him in contempt).
Furthermore, it is undisputed that the Respondents violation of the Order and Judgment,
which granted a Petition for turnover under CPLR § 5225, has prejudiced the Petitioners’ right to
enforce their judgment and impeded their efforts to do so.
Accordingly, the Judgment Debtors should be found in contempt. See McCain v.
Dinkins, 84 N.Y.2d 216 (1994) (affirming finding of civil contempt against defendant based on
disobedience of court orders); James Talcott Factors, Inc. v. Larfred, Inc. 115 A.D.2d 397 (1st
Dept. 1985) app dismissed 67 N.Y.2d 645 (1986)(defendant’s corporate officers held in
contempt of court for failure to comply with order requiring them to provide documents to
plaintiff and incarcerated until they complied with order).
Given the circumstances and history of this action, a fine in the form of the Petitioners’
attorneys’ fees, costs, and expenses that were incurred in bringing the instant contempt motion is
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warranted and appropriate, along with a $250 statutory fine. See Gottlieb v. Gottlieb, 137 A.D.3d
614 (1st Dept 2016)(Attorney fees constituting actual loss or injury resulting from contempt
routinely awarded as part of fine, including fees incurred in bringing contempt motion);
Glanzman v. Fischman, 143 AD2d 880 (2d Dept 1988), lv dismissed 74 NY2d 792 (1989) (The
court properly awarded reasonable attorney fees incurred in connection with contempt
application).
Furthermore, in light of Moshe Lax and Chana Weisz a/k/a Shaindy Lax’s gross
misconduct in this case, incarceration is warranted unless they timely purge their contempt. See
Beacon Enlarged School Dist. v. Tlumak, 42 A.D.2d 701 (2d Dept 1973) (upholding finding of
contempt and determination that defendants should be incarcerated); James Talcott Factors, Inc.
v. Larfred, Inc. 115 A.D.2d 397 (1st Dept. 1985) app dismissed 67 N.Y.2d 645
(1986)(defendant’s corporate officers held in contempt of court for failure to comply with order
requiring them to provide documents to plaintiff and incarcerated until they complied with
order).
CONCLUSION
For the reasons set forth above, the Petitioners’ motion brought by order to show cause
to punish the Respondents for contempt should be granted in its entirety.
Dated: Brooklyn, New York
May 16, 2017 MENDEL ZILBERBERG & ASSOCIATES, P.C.
Attorneys for Petitioners
/s/ Samuel Karpel
By: ____________________________
Samuel Karpel
4405 17th Avenue
Brooklyn, NY 11201
Tel: (718) 256-2000
Fax: (718) 256-7900
skarpel@amalgamail.com
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FILED: NEW YORK COUNTY CLERK 05/16/2017 03:24 PM INDEX NO. 151093/2017 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 05/16/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MICHAEL GOLDENBERG and Index No.: 151093/2017 RACHEL GOLDENBERG, (Hon. Arlene P. Bluth) Petitioners, (Motion Sequence No. 2) v. CHANA WEISZ a/k/a SHAINDY LAX, MOSHE LAX, DIAMOND DYNAMICS, LLC, and MADISON AVENUE DIAMONDS, LLC d/b/a IVANKA TRUMP FINE JEWELRY, Respondents. MEMORANDUM OF LAW IN SUPPORT OF ORDER TO SHOW CAUSE TO PUNISH RESPONDENTS FOR CONTEMPT MENDEL ZILBERBERG & ASSOCIATES, P.C. Mendel Zilberberg Samuel Karpel 4405 17th Avenue Brooklyn, New York 11204 Telephone (718) 256-2000 Facsimile (718) 256-7900 Attorneys for Petitioners Michael Goldenberg and Rachel Goldenberg 1 of 5 FILED: NEW YORK COUNTY CLERK 05/16/2017 03:24 PM INDEX NO. 151093/2017 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 05/16/2017 INTRODUCTION This memorandum is respectfully submitted in support of Petitioners Michael Goldenberg and Rachel Goldenberg’s (collectively, the “Petitioners”) motion brought by order to show cause for contempt against Respondents Chana Weisz a/k/a Shaindy Lax, Moshe Lax, Diamond Dynamics, LLC and Madison Avenue Diamonds, LLC d/b/a Ivanka Trump Fine Jewelry (collectively, “Respondents”) for their willful refusal to obey this Court’s Order and Judgment dated April 27, 2017. There can be no dispute that the Respondents willfully failed or refused to obey the Court’s Order and Judgment dated April 27, 2017, which was clear and unequivocal and directed, inter alia, that Respondents shall (a) “within seven days of service of this Order deliver to City Marshal Frank Siracusa, 6913 New Utrecht Avenue, Brooklyn, New York 11288, documents representing all of Chana Weisz a/k/a Shaindy Lax’s membership interests in Diamond Dynamics, LLC and Madison Avenue Diamonds, LLC d/b/a Ivanka Trump Fine Jewelry, in order for the City Marshal to effectuate a public sale of the membership interests”; and (b) “within seven days of service of this Order deliver to City Marshal Frank Siracusa, 6913 New Utrecht Avenue, Brooklyn, New York 11288, all documents relevant to determining the value of the membership interests in Diamond Dynamics, LLC and Madison Avenue Diamonds, LLC d/b/a Ivanka Trump Fine Jewelry…”. See Aff. of Karpel, Exhibit 3, Order and Judgment dated April 26, 2017. Accordingly, this Court should find and hold the Respondents in contempt. Furthermore, under the egregious circumstances of this case, as set forth in the accompanying Affirmation of Petitioners’ counsel, the Court should not only hold the Respondents in contempt and impose an appropriate fine, including, an award of attorney’s fees, but also, in the event the Respondents do 1 2 of 5 FILED: NEW YORK COUNTY CLERK 05/16/2017 03:24 PM INDEX NO. 151093/2017 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 05/16/2017 not fully and faithfully purge their contempt of this Court’s Order and Judgment, this Court should incarcerate Moshe Lax and Chana Weisz a/k/a Shaindy Lax in their individual capacity and as member(s) and/or managers(s) Diamond Dynamics, LLC and Madison Avenue Diamonds, LLC d/b/a Ivanka Trump Fine Jewelry, until the Respondents have fully complied with the Order and Judgment of this Court dated April 26, 2017. ARGUMENT A. THE RESPONDENTS SHOULD BE HELD IN CONTEMPT FOR THEIR VIOLATION OF THE COURT’S ORDER AND JUDGMENT DATED APRIL 27, 2017 The Respondents should be held in contempt for their flagrant and blatant violation of the Court’s Order and Judgment dated April 27, 2017. The purpose of civil contempt is to compel compliance with a court order or compensate a party injured by the disobedience of a court order. State of New York v Unique Ideas, 44 N.Y.2d 345, 349 (1978). “[T]o prevail on [such] a motion ... the movant must demonstrate that the party charged with the contempt violated a clear and unequivocal mandate of the court, thereby prejudicing a right of another party to the litigation.” Judiciary Law § 753(A); Riverside Cap. Advisers, Inc. v First Secured Cap. Corp., 43 A.D. 3d 1023, 1024 (2d Dept 2007). Under CPLR 5215, disobedience of an order related to enforcement of a money judgment is punishable as contempt of court. See CPLR § 5215. Generally, “the mere act of disobedience, regardless of motive, is sufficient to sustain a finding of civil contempt if such disobedience defeats, impairs, impedes or prejudices the rights of a party.” Yalkowsky v. Yalkowsky, 93 A.D.2d 834, 835 (2d Dept 1983). In the instant action, it is undisputed that the Respondents violated a clear and unequivocal mandate of the court by failing to (a) within seven days of the service of the Order 2 3 of 5 FILED: NEW YORK COUNTY CLERK 05/16/2017 03:24 PM INDEX NO. 151093/2017 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 05/16/2017 and Judgment deliver to the City Marshal documents representing all of Chana Weisz a/k/a Shaindy Lax’s membership interests in Diamond Dynamics, LLC and Madison Avenue Diamonds, LLC d/b/a Ivanka Trump Fine Jewelry, in order for the City Marshal to effectuate a public sale of the membership interests; and (b) within seven days of the service of the Order and Judgment deliver to the City Marshal all documents relevant to determining the value of the membership interests in Diamond Dynamics, LLC and Madison Avenue Diamonds, LLC d/b/a Ivanka Trump Fine Jewelry. Petitioners have demonstrated that Moshe Lax and Chana Weisz a/k/a Shaindy Lax’s failure to abide by the Court’s Order and Judgment is willful, given their conduct and history of non-compliance with other orders and subpoenas. See e.g. Feuer v. Feuer, 46 A.D.2d 892 (2d Dept. 1974) (defendant’s history of disingenuous behavior and noncompliance with provisions in judgment sufficient to hold him in contempt). Furthermore, it is undisputed that the Respondents violation of the Order and Judgment, which granted a Petition for turnover under CPLR § 5225, has prejudiced the Petitioners’ right to enforce their judgment and impeded their efforts to do so. Accordingly, the Judgment Debtors should be found in contempt. See McCain v. Dinkins, 84 N.Y.2d 216 (1994) (affirming finding of civil contempt against defendant based on disobedience of court orders); James Talcott Factors, Inc. v. Larfred, Inc. 115 A.D.2d 397 (1st Dept. 1985) app dismissed 67 N.Y.2d 645 (1986)(defendant’s corporate officers held in contempt of court for failure to comply with order requiring them to provide documents to plaintiff and incarcerated until they complied with order). Given the circumstances and history of this action, a fine in the form of the Petitioners’ attorneys’ fees, costs, and expenses that were incurred in bringing the instant contempt motion is 3 4 of 5 FILED: NEW YORK COUNTY CLERK 05/16/2017 03:24 PM INDEX NO. 151093/2017 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 05/16/2017 warranted and appropriate, along with a $250 statutory fine. See Gottlieb v. Gottlieb, 137 A.D.3d 614 (1st Dept 2016)(Attorney fees constituting actual loss or injury resulting from contempt routinely awarded as part of fine, including fees incurred in bringing contempt motion); Glanzman v. Fischman, 143 AD2d 880 (2d Dept 1988), lv dismissed 74 NY2d 792 (1989) (The court properly awarded reasonable attorney fees incurred in connection with contempt application). Furthermore, in light of Moshe Lax and Chana Weisz a/k/a Shaindy Lax’s gross misconduct in this case, incarceration is warranted unless they timely purge their contempt. See Beacon Enlarged School Dist. v. Tlumak, 42 A.D.2d 701 (2d Dept 1973) (upholding finding of contempt and determination that defendants should be incarcerated); James Talcott Factors, Inc. v. Larfred, Inc. 115 A.D.2d 397 (1st Dept. 1985) app dismissed 67 N.Y.2d 645 (1986)(defendant’s corporate officers held in contempt of court for failure to comply with order requiring them to provide documents to plaintiff and incarcerated until they complied with order). CONCLUSION For the reasons set forth above, the Petitioners’ motion brought by order to show cause to punish the Respondents for contempt should be granted in its entirety. Dated: Brooklyn, New York May 16, 2017 MENDEL ZILBERBERG & ASSOCIATES, P.C. Attorneys for Petitioners /s/ Samuel Karpel By: ____________________________ Samuel Karpel 4405 17th Avenue Brooklyn, NY 11201 Tel: (718) 256-2000 Fax: (718) 256-7900 skarpel@amalgamail.com 4 5 of 5