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Walker v. Brian
Walker v Brian 2024 NY Slip Op 31563(U) May 1, 2024 Supreme Court, New York County Docket Number: Index No. 155841/2023 Judge: John J. Kelley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
INDEX NO. 155841/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/02/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JOHN J. KELLEY PART 56M Justice -------------------X INDEX NO. 155841/2023 DOUGLASS. WALKER, DIANA BRIAN, NATALIE H. DENT, CHRISTOPHER C. BRIAN, ALEXANDRA M. BRIAN, EARL MOTION DATE 04/08/2024 W. BRIAN, Ill, JENNIFER BRIAN, DAVID SCHMICKEL, and WILLIAM J. HOWARD, all derivatively on behalf of DIANA MOTION SEQ. NO. 002 AND EARL W. BRIAN, JR. FAMILY TRUST,
Petitioners,
- V- DECISION, ORDER, AND JUDGMENT OF CONTEMPT EARL W. BRIAN, Ill,
Respondent. -------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 18, 19, 20, 21, 22, 23,25 were read on this motion to/for PUNISH FOR CONTEMPT
This is a proceeding pursuant to CPLR 2308, 3124 and 3125 to compel the respondent,
Earl W. Brian, Ill, to comply with a subpoena duces tecum and ad testificandum served upon
him on March 17, 2023, and for an award of attorneys' fees, disbursements, and costs incurred
in commencing and litigating this proceeding. In a decision, order, and judgment dated August
25, 2023, this court granted the petition, and directed the respondent to appear in person on
September 21, 2023, at 10:00 a.m., or at any adjourned date agreed upon by the parties, at the
offices of the petitioners' attorneys, to give testimony concerning issues in the action entitled
Douglas S. Walker, et al. v. Mary B. Burgoyne, M.D., Case No. C-20-CV-22-000047, pending in
the Circuit Court, Talbot County, Maryland, and to produce all of the documents demanded in
the subpoena served upon him on March 17, 2023. The respondent not only disobeyed the
March 17, 2023 subpoena, but failed or refused to comply with this court's August 25, 2023
order. The petitioners now move pursuant to Judiciary Law§§ 750, 751, and 753(A)(5) and
CPLR 2308(a) to hold the respondent in civil and criminal contempt of court for his refusal to
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INDEX NO. 155841/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 05/02/2024
comply with this court's August 25, 2023 decision, order, and judgment. The motion is granted
to the extent that the respondent is adjudged and held to be in civil contempt, he is assessed a
fine of $250.00, payable to the petitioners, and the petitioners are awarded the costs and
expenses of litigating this motion, which shall be established upon submission of a bill or invoice
and an affirmation of attorneys' services. The motion is otherwise denied.
The court concludes that the respondent may be held in civil contempt, but not in
criminal contempt. Civil and criminal contempt are distinguishable, in that a "contempt sanction
is viewed as civil if it is 'remedial,' and for the benefit of the complainant, but is criminal if its
purpose is punitive, and to "'vindicate the authority of the court""' (New York City Tr. Auth. v
Transportation Workers Union of Am., AFL-CIO, 35 AD3d 73, 86 [2d Dept 2006], quoting
International Union, United Mine Workers of America, v Bagwell, 512 US 821, 827-828 [1994]).
"Coercive penalties designed to modify the contemnor's behavior, generally speaking, are civil
in nature, while penalties meant to punish the contemnor for past acts of disobedience are
criminal" (New York City Tr. Auth. v Transportation Workers Union of Am., AFL-CIO, 35 AD3d at
86). Inasmuch as the petitioners are not attempting to vindicate the authority of the court and
are primarily seeking to modify the respondent's future behavior so that he complies with the
subpoena and this court's prior order, criminal contempt is not applicable here.
To prevail on an application to punish a party for civil contempt, the moving party must
establish that the party to be held in contempt violated a clear and unequivocal court order,
known to the parties (see Judiciary Law§ 753[A][3]; see also McCormick v Axelrod, 59 NY2d
574 [1983], amended 60 NY2d 652 [1983]). The applicant must also establish that the party to
be held in contempt engaged in conduct that was calculated to and actually did defeat, impair,
impede, and prejudice the rights of the applicant (see 450 West 14th St. Corp. v 40-56 Tenth
Avenue, LLC, 15 AD3d 166 [1st Dept 2005]; Lipstick, Ltd. v Grupo Tribasa, S.A. de C. V., 304
AD2d 482 [1st Dept 2003]). "[W]ilfulness is not an element of civil contempt" (EI-Dehdan v EI-
Dehdan, 26 NY3d 19, 35 [2015]). A civil contempt must be proven by clear and convincing 155841/2023 DOUGLASS. WALKER ET AL vs. EARL W. BRIAN, Ill Page 2 of 4 Motion No. 002
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evidence (see Classe v Silverberg, 168 AD3d 603, 604 [1st Dept 2019]). A lawful order of this
court was rendered and in effect as of August 25, 2023, directing the respondent to appear for a
deposition on a date certain and to produce requested documents on that date as well. By
failing or refusing to appear or produce those documents, the respondent not only disobeyed a
court order, but he also engaged in conduct that was meant to impede and prejudice the
petitioners' rights. Hence, clear and convincing evidence supports the petitioners' motion.
Where, as here, a complainant's rights may be prejudiced, but an actual loss or injury
has not been caused or established, the imposition of a fine is an appropriate punishment (see
King v King, 124 Misc 2d 946, 950 [Sup Ct, N.Y. County 1984]). The "unambiguous" language
of the Judiciary Law provides that such a fine may not exceed the amount of the complainant's
costs and expenses in making the contempt motion, plus $250 (Judiciary Law§ 773; see State
v Unique Ideas, Inc., 44 NY2d 345, 349 [1978]; King v King, 124 Misc 2d at 950). Inasmuch as
the petitioners' attorneys did not submit an invoice, bill, or affirmation of attorneys' services
establishing how much the petitioners incurred in prosecuting this motion, the court cannot
award such costs and expenses at this juncture. Hence, the court directs the petitioners to
submit such an invoice, bill, and affirmation of attorneys' services supporting their application for
an award of costs to compensate them for the respondent's civil contempt, upon which the court
will issue a supplemental order making the appropriate award.
In light of the foregoing, it is,
ORDERED that the petitioners' motion is granted, without opposition, to the extent that
the respondent is held in civil contempt and is directed to pay a fine of $250.00, plus the
petitioners' costs and expenses incurred in making this motion as a consequence thereof, and
the motion is otherwise denied; and it is,
ADJUDGED that the respondent, Earl W. Brian Ill, is held in civil contempt; and it is
further,
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ORDERED that, on or before June 7, 2024, the respondent, Earl W. Brian Ill, shall purge
his contempt by appearing for and giving a deposition and producing the documents identified in
the subpoena served upon him; and it is further,
ORDERED that, if, on or before June 7, 2024, the respondent, Earl W. Brian Ill, does not
purge his contempt by appearing for and giving a deposition and producing the documents
identified in the subpoena served upon him, he shall, upon motion by the petitioners. be subject
to seizure by New York City Sheriff to compel his appearance; and it is further,
ORDERED that, on or before May 10, 2024, the petitioners shall serve a copy of this
decision, order, and judgment upon the respondent by regular mail and certified mail, return
receipt requested; and it is further,
ORDERED that, within 30 days of the entry of this decision, order, and judgment the
petitioners shall submit a bill or invoice, and an affirmation of attorneys' services, to establish
the amount to which they are entitled to recover from the respondent as a consequence of his
civil contempt.
This constitutes the Decision, Order, and Judgment of Contempt of the court.
5/1/2024 DATE
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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