Recitation as required by CPLR §§2219(a) of the papers considered for this motion: Papers Dated Plaintiff’s Motion for Contempt January 11, 2023 Respondent’s Opposition April 6, 2023 Plaintiff’s Reply May 3, 2023 DECISION/ORDER Upon the foregoing cited papers and after oral argument on May 10, 2023, pursuant to Judiciary Law §753(a), Plaintiff’s Motion for Contempt is DENIED. BACKGROUND The instant matter arises out of an application for disability retirement benefits, filed by Petitioner on August 2, 2011. On January 13, 2013, Respondents denied the application and Petitioner then filed an Article 78 proceeding challenging the Respondents’ decision. The first Article 78 proceeding was filed August 9, 2013, and on May 23, 2014, the Court concluded that Respondents’ decision was arbitrary and capricious that was based on conclusory findings and remanded the matter back to Respondents to make new findings.1 On December 9, 2014, Respondents again denied Petitioner’s application for disability retirement benefits. On August 10, 2015, Petitioner brought a second Article 78 proceeding challenging Respondents’ decision and on August 2, 2016, the Court again determined Respondents’ decision was arbitrary and capricious that was based on conclusory findings and remanded the matter back to Respondents to make new findings.2 On January 11, 2023, Petitioner filed the instant motion, pursuant to Judiciary Law §753(a), seeking an Order of contempt against Respondent’ for failure to comply with the Court’s previous Orders, directing Respondents to commence payment of Petitioner’s disability retirement benefits from the date of application, and directing Respondents to pay costs, expenses, and attorneys’ fees incurred in the prosecution of this matter. DISCUSSION Judiciary Law §753(a) empowers the Court 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 pending in the court may be defeated, impaired, impeded, or prejudiced, in a case.” Civil contempt is available where “a party to the action” is guilty of “disobedience to a lawful mandate of the court.” See Judiciary Law §753(a)(3). The aim of civil contempt is “the vindication of a private right of a party to litigation and any penalty imposed upon the contemnor is designed to compensate the injured private party for the loss of or interference with that right.” CA v. EB, 2022 NY Slip Op 50855(U), [76 Misc 3d 1209(A)], citing McCormick v. Axelrod, 59 NY2d 574, 582-583 (1983). In order for the Court to find civil contempt, there must be: (1) a lawful Order of the Court in effect, which “clearly express[es] an unequivocal mandate”; (2) the party sought to be held in contempt “must have had knowledge of the court’s order”; (3) disobedience of the Order; and (4) prejudice to the right of a party to the litigation. Id, citing McCormick v. Axelrod, supra 59 NY2d at 583 (civil contempt found where nursing home transferred residents in violation of the Court Order that expressed “clear mandate” staying all steps to involuntarily discharge residents pending appeal); El-Dehdan v. El-Dehdan, 114 AD3d 4, 16-17 (2d Dept 2013). “A motion for civil contempt is addressed to the sound discretion of the court, and the movant bears the burden of proving the contempt by clear and convincing evidence.” See El-Dehdan v. El-Dehdan, supra 114 AD3d at 10. Generally, reasonable counsel fees are warranted for work performed in bringing a contempt motion for conduct that caused these costs and expenses to be incurred. See, Boukas v. Boukas, 163 AD3d 755, 756 (2d Dept 2018); Gonnard v. Guido, 141 AD3d 649, 650 (2d Dept 2016). Attorney fees that are documented and directly related to the contemptuous conduct are generally recoverable unless they are proven excessive or reduced by the Court. See Matter of Gonnard v. Guido, 2016 NY Slip Op 05564 [141 AD3d 649], citing Vider v. Vider, 85 AD3d 906, 908 (2011); Bell v. White, 77 AD3d 1241, 1244 (2010). Here, Respondents were not in violation of the Court’s August 2, 2016 Order. In its August 2, 2016 Order, Respondent Medical Board’s decision was found to be arbitrary and capricious and based on conclusory findings and remanded the matter back for Respondents to make new findings. Specifically, the Court determined: “In this case the conclusion of the Medical Board rests upon its findings in a prior hearing that this court found was arbitrary and capricious. The Medical Board admits that ‘no new documents [were] submitted for review’ and that the board ‘will make references to documentation from the previous meetings.’ (Citations omitted). The Medical Board came [to] the same conclusions as it did in its last determination using identical evidence that this court found was not credible. Furthermore, ‘[t]he Medical Board notes that there is a lack of documentation…to substantiate Betsy Barton’s claims,’ but does [sic] submit any new documentation that would qualify as credible evidence. (Emphasis added). This is further troubling as the very Medical Board which conducted a medical examination of Ms. Barton found that she complained of back pain and had limited motion in her shoulders, but failed to articulate how the petitioner can fulfill the duties of station manager despite these restrictions. (Citations omitted) (Emphasis added). The Medical Board’s only explanation for its denial of disability retirement benefits was that its examination of petitioner was consistent with symptom magnification, but the Medical Board did not explain how or why it came to that conclusion. (Emphasis added). Thus, the Medical Board has failed to present credible evidence sustaining its determination. (Citations omitted).”3 Following the court’s August 2, 2016 Order, Respondents filed a Motion for Leave to Reargue and Appeal the October 24, 2016 Order. By Decision and Order dated December 13, 2017, the Court denied Respondents’ motion.4 Respondent Medical Board examined Petitioner on October 19, 2017, December 14, 2017, August 27, 2018, January 29, 2019, and November 7, 2019. In its November 7, 2019 decision (“Medical Board decision”), the Medical Board submitted new documentation that would qualify as credible evidence, articulated how the Petitioner could fulfill the duties of station manager, and explained how or why it came to its conclusions. Respondent noted it reviewed multiple medical records from 2017, 2018, and 2019. More specifically, the Medical Board decision indicated it reviewed multiple medical reports including: a report from an October 6, 2018 MRI of the lumbar spine; November 9, 2018 through October 31, 2019 reports by Dr. Joel H. King from the office of Harris Psychiatric Services, PLLC; November 12, 2018 through March 1, 2019 reports from Total Neuro Care, P.C., Dr. R.C. Krishna; December 14, 2018 through July 18, 2019 reports from Dr. D. Mikelis; January 15, 2019 and August 27, 2019 reports from Richmond Pain Management ASC; February 26, 2019 report from Dr. Uel Alexis; a radiology review of a June 20, 2019 imaging from Dr. Michael Karlin; a NYCERS consulting psychiatric July 3, 2019 report from Dr. Bruce H. David, D.O.; September 15, 2019, through October 31, 2019 form checklist psychology notes from Behavioral Medicine Associates; and a January 28, 2019 orthopedic report from Dr. Alan J. Dayan.5 Such extensive review by Respondent Medical Board is found to be based on credible evidence to support its denial of benefits.6 Furthermore, the Medical Board’s decision explained its conclusions and “provided an articulated, rational, and fact-based medical opinion for how it came to its conclusions.“7 Its decision specifically noted: “that the applicant has overall good upper and lower extremity strength with findings suggestive of symptom magnification including noted give way weakness and tenderness with even limited palpation. Today’s examination did not reveal muscle atrophy or reflex abnormities. The reported left upper and lower extremity as well as left chest wall sensory loss is in a nondermatomal distribution, which is not consistent with organic pathology…also notes inconsistent subjective findings on range of motion testing suggestive of symptom magnification. Specifically, the Medical Board notes reduced left shoulder range of motion as compared to the applicant’s treating orthopedic documentation.”8 Finally, the Medical Board decision explained that Petitioner would be able to “perform the duties and responsibilities of Station Supervisor such as supervising staff, conducting booth audits, providing customer service, and conducting inspections” because Petitioner “does not have functional limitations to preclude her from these duties.”9 Respondent Medical Board’s decision noted that Petitioner had “overall good strength limited by giveaway weakness and no muscle atrophy or muscle wasting…ambulation pattern was noted to be with normal balance.”10 As such, Respondents cannot be found in contempt, as they have not disobeyed the court’s August 2, 2016 Order. Therefore, Petitioner’s motion is denied in its entirety. This constitutes the Decision and Order of the Court. Dated: March 5, 2024
