Part XXXII Contempt Motions Contempt Motions

• Jurisdiction: New York

Part XXXII —
Contempt Motions

In the last issue, the Legal Writer concluded its discussion of subpoenas.

We continue the series on New York civil-litigation documents by discussing civil- and criminal-contempt motions.

Contempt: The Basics

CPLR 5104 provides that if a judgment or court order, whether interlocutory or final, isn’t enforceable under CPLR’s Article 52 or CPLR 5102, you may enforce the judgment or order by moving for civil or criminal contempt.¹³³² Article 52 discusses how to enforce money judgments. CPLR 5102 explains how to execute on a judgment of possession for real or personal property.

Article 19 of the Judiciary Law governs the procedure to punish for contempt.¹³³³

The penalty for an offense against “public justice” is criminal contempt.¹³³⁴ Criminal contempt is “designed to vindicate and uphold the authority of the judiciary.”¹³³⁵

The penalty for violating a “private right” is civil contempt.¹³³⁶ Civil contempt is meant to redress a litigant’s rights.¹³³⁷

Contempt — civil and criminal — is civil in nature. Yet a “criminal contempt proceeding, while civil in nature, has vindication as its objective, not remediation.”¹³³⁸

Contempt is a crime only under Penal Law §§ 215.50 and 215.51.

A court may summarily punish a person for contempt if the contempt is committed in the court’s immediate view and presence. This is called summary criminal contempt.

If the court doesn’t exercise its summary contempt power, the court may exercise its plenary contempt power. For plenary contempt, the accused must be given due process: notice of the contempt accusation and an opportunity to be heard.¹³³⁹

If your client is aggrieved, you may move for civil or criminal contempt, or both.

The court must decide whether civil or criminal contempt, or both, is appropriate and must determine the punishment. If factual disputes exist about the alleged contemnor’s conduct, the alleged contemnor has the right to an immediate trial.

The Legal Writer will briefly discuss Penal Law contempt as well as summary criminal contempt but will emphasize civil- and criminal-contempt motions in the civil-litigation context.

Conduct Punishable by Contempt

Judiciary Law § 750 outlines what conduct is punishable by criminal contempt.

Judiciary Law § 753 outlines the conduct punishable by civil contempt. CPLR 5104 and 5251 also outline what conduct can lead to a civil-contempt penalty.

Courts not of record may not punish for criminal contempt unless a statute grants that power.¹³⁴⁰

Courts of record¹³⁴¹ have the power to punish for criminal contempt for the following conduct:

“[D]isorderly, contemptuous or insolvent behavior, committed during its sitting, in its immediate view and presence and directly tending to interrupt its proceedings, or to impair the respect due to its authority.” ¹³⁴²

Breaching the “peace, noise, or other disturbance, directly tending to interrupt proceedings.” ¹³⁴³

Willfully disobeying a lawful mandate. ¹³⁴⁴

Willfully resisting a lawful mandate. ¹³⁴⁵

A subpoenaed witness’s contumacious and unlawful refusal to be sworn in. Or, after being sworn in, refusing to answer any legal and proper question. ¹³⁴⁶ “Contumacious” in the criminal-contempt context means willful, perverse, and obstinate. Subpoenaed witnesses may also be punished for civil contempt (see below). When behavior is contumacious and unlawful, criminal contempt is the punishment.

Publishing a false or grossly inaccurate report of a court’s proceedings. ¹³⁴⁷

Jury service and witness testimony: willful failure to comply with Judiciary Law Articles 16, 17, 18, 18-a, and 18-b. ¹³⁴⁸ This includes refusing to serve as a juror, refusing to be sworn as a juror, and subjecting an employee to discharge or penalty for missing work because of jury duty or for being a witness.

Unlawfully practicing law or assuming to practice law. ¹³⁴⁹

Disobeying or resisting a court’s lawful mandate involving labor disputes. ¹³⁵⁰

Courts not of record have the power to punish for civil contempt only if a statute grants that power.¹³⁵¹ Bring your application to punish for contempt in Supreme Court or County Court if your forum doesn’t have that power. Courts of record have the power to punish for civil contempt for the following people who commit the following conduct:

Attorneys and others who perform judicial or ministerial service and who misbehave in office, willfully neglect duty, or disobey a lawful mandate. ¹³⁵²

A party who places a fictitious bail or surety or who deceives or abuses a court mandate or proceeding. ¹³⁵³

A party, an attorney, or any other person who disobeys a lawful court order, including nonpayment of money where “by law execution can[’t] be awarded for the collection of such sum.” ¹³⁵⁴

A person who acts as an attorney or a court officer (an impostor); a person who “rescues” property or persons in court custody, prevents witness testimony, or unlawfully interferes with court proceedings. ¹³⁵⁵

A subpoenaed witness who refuses or neglects to obey a subpoena or to appear, be sworn, or to testify. ¹³⁵⁶

A jury candidate who improperly converses or communicates with a party or a person who attends and acts or attempts to act as a juror in place of the person duly notified to attend. ¹³⁵⁷

“An inferior magistrate, or a judge or other officer of an inferior court, for proceeding, contrary to law, in a cause or matter, which has been removed from his jurisdiction to the court inflicting the punishment; or for disobedience to a lawful order or other mandate of the latter court.” ¹³⁵⁸

You may move for contempt if a person has failed to pay maintenance or support under a matrimonial decree.¹³⁵⁹

Disobeying a judicial subpoena will also subject you to a contempt penalty.¹³⁶⁰

Although contempt isn’t the most direct way to enforce a money judgment, contempt is the remedy for CPLR’s Article 52 enforcement devices. Judiciary Law Article 19 explains the procedure for punishing for contempt. Under CPLR 5251, the following behavior constitutes contempt:

Refusing or willfully neglecting to obey a CPLR 5224 disclosure subpoena or “false[ly] swearing upon an examination or in answering written questions.” ¹³⁶¹ The subpoenas mentioned in CPLR 5224 don’t include all the disclosure devices under CPLR Article 31. The subpoenas CPLR 5251 contemplates are deposition subpoenas, subpoenas duces tecum, and information subpoenas. ¹³⁶²

Refusing or willfully neglecting to obey a CPLR 5222 restraining notice. ¹³⁶³ A judgment creditor’s attorney or a court clerk issues a restraining notice. ¹³⁶⁴ A restraining notice is served on the judgment debtor or a garnishee. ¹³⁶⁵ A restraining notice enjoins the person served from turning over property except to the sheriff (or a marshal) or pursuant to a court order. ¹³⁶⁶

Willfully defacing or removing notices of upcoming sales of property “before the sale” ¹³⁶⁷ of the property “in conjunction with levies and sales of personal property or real property.” ¹³⁶⁸

Willfully disobeying any Article 52 order: (1) a CPLR 5225 delivery order (property or money sought) or a CPLR 5227 order (debt owed to the judgment debtor); (2) a CPLR 5226 installment-payment order; (3) an order directing property to be surrendered to a receiver appointed under CPLR 5228; (4) a prejudgment order directing an examination or restraint under CPLR 5229; and (5) a CPLR 5240 protective order.

Only the courts listed in CPLR 5221(a) may punish for contempt of CPLR’s Article 52 devices.

Equity judgments — injunctions, for example — are enforceable by contempt.¹³⁶⁹ You may move for contempt if you’re seeking to enforce a preliminary injunction or a temporary restraining order (TRO).¹³⁷⁰

You may move for contempt to enforce a court’s judgment that directs a person or entity to pay money into court.¹³⁷¹

You may also move for contempt if a trustee or other fiduciary,¹³⁷² such as a decedent’s personal representative, a committee or conservator, a guardian, an escrowee,¹³⁷³ or a corporate official,¹³⁷⁴ fails to pay money because of a willful breach of trust.¹³⁷⁵ The judgment you’re seeking to enforce by contempt must state “the facts manifesting that the dereliction arises out of the required fiduciary connection.”¹³⁷⁶

Even though replevin judgments are “enforcible only by an execution directing the sheriff [or marshal] to seize the chattel and return it to the plaintiff,”¹³⁷⁷ you may use contempt to enforce a replevin judgment “if the chattel is unique and the judgment specifically directs the defendant to return it.”¹³⁷⁸

You may move for contempt if your adversary violates a stay of the proceedings.¹³⁷⁹

Conduct Punishable Under the Penal Law

Criminal contempt is a crime punishable under Penal Law § 215.50 (criminal contempt in the second degree, a Class A misdemeanor) and Penal Law § 215.51 (criminal contempt in the first degree, a Class E felony).

A person commits a Penal Law § 215.50 crime for “disorderly, contemptuous, or insolent behavior, committed during the sitting of a court, in its immediate view and presence.”

A person commits a Penal Law § 215.51 crime by improperly refusing to be sworn before a grand jury, by refusing to answer questions before a grand jury, or by violating an order of protection.

Penal Law §§ 215.50 and 215.51 prosecutions aren’t as frequent as Judiciary Law contempt proceedings.

A Judiciary Law § 750(A) criminal-contempt adjudication will bar a Penal Law prosecution for criminal contempt.¹³⁸⁰ Prosecuting a defendant for the same offense (the same act using the same evidence) violates the Double Jeopardy clause.¹³⁸¹

Absent statutory authority, a contemnor adjudicated under the Penal Law doesn’t have the right to purge the contempt.¹³⁸²

Summary Criminal Contempt

If the contemptuous conduct happens in the court’s immediate view and presence, the court may summarily adjudicate the contemnor.¹³⁸³ Judiciary Law §§ 751 and 755 provide that a court may summarily punish a person for criminal contempt committed...