The following e-filed documents, listed by NYSCEF document number (Motion 002) 39, 40, 41, 42, 44 were read on this motion to/for DISCOVERY — PRE-ACTION. DECISION + ORDER ON MOTION Petitioner seeks, inter alia, to compel respondent New York City Fire Department and City of New York (hereinafter “FDNY”) to comply with this Court’s prior order, under threat of contempt. Despite service on the FDNY Bureau of Fires Investigation, Fire Marshall Quinones, City of New York Corporation Counsel, and FDNY Battalion Chief, the motion is unopposed. By Decision and Order on motion sequence 001 (NYSCEF Doc. No. 36), the Court, inter alia, directed respondent FDNY to “produce the unredacted fire marshal fire and incident report and any other records in its possession related to the January 30, 2021 fire at 1738 Lexington Avenue New York, NY within 30 days of notice of entry of this decision and order.” Notice of entry was served on November 17, 2021; consequently, FDNY’s compliance was due on or about December 17, 2021. Following the court-imposed deadline, petitioner sought FDNY’s compliance by writing FDNY’s Bureau of Fire Investigation, the New York City Law Department, and the Chief of the FDNY, to no avail (see NYSCEF Doc. No. 42). Judiciary Law §753(a)(3) provides, in relevant part: 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 in the court may be defeated, impaired, impeded, or prejudiced…3. A party to the action or special proceeding…for any other disobedience to a lawful mandate of the court The same act may be punishable both as criminal contempt and civil contempt; however, the determinative factor is the level of willfulness associated with the contemptable act or conduct (McCain v. Dinkins, 84 NY2d 216 [1994]; see also Matter of McCormick v. Axelrod, 59 NY2d 574 [1983]). Notwithstanding, petitioner has sought only civil contempt here, and the Court need not consider, at this time, criminal contempt. A finding of civil contempt requires: a lawful order expressing an unequivocal mandate, disobedience of that order, and knowledge of the order by the disobeying party (see e.g. id.; see also Pereira v. Pereira, 35 NY2d 301 [1974]). Additionally, a party’s rights must be prejudiced by the disobedience (Matter of McCormick, 59 NY2d 574). An application for civil contempt is addressed to the sound discretion of the Court, and the party seeking a finding of contempt bears the burden of establishing same by clear and convincing evidence (El-Dehdan v. El-Dehdan, 114 AD3d 4 [1st Dept 2013]). Finding a municipal party in contempt does not preclude finding that municipal party’s officials in contempt — indeed, the Court of Appeals has unequivocally determined that municipal officials meeting the same standards of contempt as the municipal party should be held in contempt (McCain v. Dinkins, 84 NY2d at 228, “no basis in law” to judge officials differently than municipal party). Here, as in McCain, “insurmountable proof of municipal noncompliance [has been] assembled and no escape theories are available on this record.” (McCain v. Dinkins, 84 NY2d at 227). It is beyond cavil that the Court issued a lawful court order and the order unequivocally mandated FDNY to provide documents related to the subject fire (NYSCEF Doc. Nos. 36 and 37). Likewise, having failed to appear on this motion, there is no dispute that FDNY failed to comply with the order and has not offered any excuse for its disobedience. Such disobedience has significantly prejudiced plaintiff’s ability to prosecute a civil matter stemming from a fire to which the FDNY responded, extinguished, and investigated. Furthermore, although service is not required to impute knowledge of the Court’s order, plaintiff has established service of the underlying order upon FDNY; the Battalion Chief, Harry Poole; Fire Marshall Bob More; Fire Marshall Quinones; and FDNY employee Phillip J. Pillet (NSYCEF Doc. Nos. 40-44). As employees and officials to the municipal party, FDNY, a finding of civil contempt against these individuals, as well as FDNY, is warranted. Under these circumstances, “[c]ourts are justified and enjoy few alternative options in such circumstances except to exercise their inherent power to enforce compliance with their lawful orders through civil contempt” (id. [internal quotations removed] citing Shillitani v. United States, 384 US 364, 369 [1966]). Having found the above parties and persons in civil contempt, the Court must impose an appropriate penalty, considering the remedial nature and effect, as well as coercive effect, of same (State of New York v. Unique Ideas, 44 NY2d 345 [1978]; Matter of Department of Envtl. Protection of City of N.Y. v. Department of Envtl. Conservation of State of N.Y., 70 NY2d 233, 240 [1987]; see also McCain v. Dinkins, 84 NY2d at 229). In setting these sanctions, the Court invokes its inherent powers of equity and must utilize the “least possible power adequate” to ensure future compliance (Spallone v. United States, 493 US 265, 272 [1990] [internal quotations removed]). Notwithstanding, the Court notes that the motion is silent as to the appropriate penalty or recompense for the contempt, excepting for attorney’s fees in bringing the contempt motion. Accordingly, it is ORDERED that the motion is granted; and it is further ORDERED that the Court finds the New York City Fire Department, City of New York, Jennifer Quinones, Rob Moore, Harry Poole, and Phillip J. Pillet in civil contempt; and it is further ORDERED that such contempt did actually defeat, impair, and prejudice the rights of plaintiffs; and it is further ORDERED that plaintiff shall file, via NYSCEF with courtesy copy emailed to the Part ([email protected]), a proposed order addressing the appropriate remedy(ies) for such contempt, including any monetary relief other than attorney’s fees, no later than April 15, 2022; and it is further ORDERED that the portion of the motion seeking attorney’s fees is granted in an amount to be determined at inquest, via Microsoft Teams, on May 11, 2022 at 2:30pm; and it is further ORDERED that on or before May 6, 2022, plaintiff’s counsel shall file, via NYSCEF with courtesy copy emailed to the Part as above a detailed recitation of the work expended on this motion, including the number of hours spent on each task and plaintiff’s counsel’s usual hourly rate for same. Failure to timely file same shall be deemed waiver of attorney’s fees; and it is further ORDERED that insomuch as the subsequent order may result in financial assessments due by the City of New York and/or the above-named individuals in their personal and professional capacities, movant is directed to [continued on following page] personally serve a copy of this order on each of the foregoing individuals and the Corporation Counsel for the City of New York on or before March 30, 2022 with proof of service filed to NYSCEF on or before April 1, 2022. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER X SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: March 21, 2022
