        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

811
CA 15-02033
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


DANIELLE DOTZLER, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

THOMAS S. BUONO, DEFENDANT-APPELLANT.


THE LAW OFFICE OF MATTHEW ALBERT, ESQ., BUFFALO (MATTHEW ALBERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. WILD, ESQ. PLLC, WILLIAMSVILLE (MICHAEL C. WILD OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Erie County (Christopher J. Burns, J.), entered February 4,
2015. The order and judgment granted plaintiff’s motion for an order
determining that defendant was in contempt of court, imposed a fine,
struck defendant’s answer and awarded plaintiff a money judgment
against defendant.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously reversed on the law without costs, the motion is
denied, defendant’s answer is reinstated and the award of judgment is
vacated.

     Memorandum: In this action to recover damages for an alleged
breach of contract, defendant appeals from an order and judgment that
found him in contempt of court for failing to comply with a temporary
restraining order (TRO), and sua sponte struck his answer and granted
plaintiff the relief sought in her complaint. Plaintiff contracted
with defendant to purchase defendant’s mobile home and made a down
payment of $11,000. After defendant allegedly failed to deliver the
keys to the mobile home, plaintiff commenced this action seeking to
recover the down payment. According to defendant, plaintiff failed to
make further payments due under the agreement, and defendant refused
to deliver the mobile home. Defendant further alleged that plaintiff
forfeited the down payment, and he refused to return it to plaintiff.

     Subsequently, plaintiff discovered that defendant had sold the
mobile home to a third party. Supreme Court granted plaintiff’s
application for a TRO that enjoined defendant from “diverting or
otherwise alienating the proceeds of the sale of the trailer.”
Plaintiff served the TRO on defendant’s counsel, who then mailed the
order to the home address that had been provided to him by defendant.
Unbeknownst to defendant’s counsel, defendant had moved his residence
                                 -2-                           811
                                                         CA 15-02033

and did not receive the TRO before he spent the proceeds from the sale
of the mobile home. The court found defendant in contempt of court
because he failed to comply with the TRO, and the court sua sponte
dismissed defendant’s answer and granted plaintiff the relief sought
in the complaint. We reverse.

     A finding of civil contempt must be supported by four elements:
(1) “a lawful order of the court, clearly expressing an unequivocal
mandate, was in effect”; (2) “[i]t must appear, with reasonable
certainty, that the order has been disobeyed”; (3) “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”; and (4) “prejudice to the right of a party to the
litigation must be demonstrated” (Matter of McCormick v Axelrod, 59
NY2d 574, 583, order amended 60 NY2d 652). The party seeking an order
of contempt has the burden of establishing those four elements by
clear and convincing evidence (see El-Dehdan v El-Dehdan, 26 NY3d 19,
29; Belkhir v Amrane-Belkhir, 128 AD3d 1382, 1382).

     Here, we agree with defendant that plaintiff failed to establish
by the requisite clear and convincing evidence that defendant had
actual knowledge of the TRO at the time he spent the proceeds from the
sale of the mobile home (see Puro v Puro, 39 AD2d 873, 873, affd 33
NY2d 805). We reject plaintiff’s contention that defendant’s actual
knowledge of the TRO is not necessary here because she served the TRO
upon defendant’s attorney (see CPLR 2103 [b]). “Actual knowledge of a
judgment or order is an indispensable element of a contempt
proceeding” (Orchard Park Cent. Sch. Dist. v Orchard Park Teachers
Assn., 50 AD2d 462, 468, appeal dismissed 38 NY2d 911; see Matter of
Howell v Lovell, 103 AD3d 1229, 1230), and the record establishes that
defendant did not receive the TRO before he spent the proceeds from
the sale of the mobile home.

     We further conclude that the court erred in awarding plaintiff
summary judgment without affording adequate notice to defendant (see
Town of Lloyd v Moreno, 297 AD2d 403, 405; Clark v New York State Off.
of Parks, Recreation & Historic Preserv., 288 AD2d 934, 935). We note
that neither party moved for summary judgment nor made any request for
such relief (see Clark, 288 AD2d at 935). During the contempt
hearing, the court asked only one question relating to the merits of
the action, and we conclude that the court’s inquiry did not give the
parties notice that the court planned to award summary judgment to
plaintiff.

     In light of the foregoing, we deny the motion for contempt,
reinstate the answer, and vacate the award of judgment.




Entered:   November 10, 2016                    Frances E. Cafarell
                                                Clerk of the Court
