The following e-filed documents, listed by NYSCEF document number (Motion 003) 23, 24, 25, 26, 27, 28 were read on this motion to/for CONTEMPT. INTERIM ORDER ON MOTION Plaintiff moves for an order holding defendant Mercedes Alduey (hereinafter “defendant”) in contempt of court pursuant to Judiciary Law §§753 and 756. The Court notes that the motion is wholly unopposed. Plaintiff urges that a hearing is not necessary for this Court to find defendant in contempt, as the necessary elements for such finding are beyond dispute and the penalty sought in the instant motion is civil rather than criminal in nature. However, plaintiff’s notice of motion advises: WARNING: YOUR FAILURE TO APPEAR IN COURT MAY RESULT IN YOUR IMMEDIATE ARREST AND IMPRISONMENT FOR CONTEMPT OF COURT. (Notice of Motion, NYSCEF Doc. No. 23) Consequently, despite movant’s contention that the instant proceeding seeks a finding of civil contempt, the relief sought herein, by the language of movant’s own notice of motion threatening incarceration, is in the nature of criminal contempt (see e.g. K.G. v. C.H., 209 AD3d 526 [1st Dept 2022] civil contempt motion for non-payment resulting in order of incarceration in the nature of criminal contempt). While the “line between [civil and criminal] contempt may be difficult to draw in a given case, and the same act may be punishable as both a civil and a criminal contempt, the element which serves to elevate a contempt form civil to criminal is the level of willfulness with which the conduct is carried out” (McCormick v. Axelrod, 59 NY2d 574 [1983]). Here, it is alleged that defendant willfully disobeyed this Court’s order for financial gain and to hide assets due plaintiff. As such, despite movants characterization of the instant motion as seeking civil contempt, and further given the threat of incarceration set forth on the notice of motion, the application seeks criminal contempt. Therefore, defendant is entitled to “the same rights afforded a criminal defendant, including a right to be heard, to have her guilt proven beyond a reasonable doubt, and to meaningful representation of counsel” (K.G. v. C.H., 209 AD3d 526). To the extent that movant contends a hearing is not necessary as defendant’s violation of the Court’s order is not in dispute, “[t]he fact that a party does not comply with a court order does not, in and of itself, constitute criminal contempt” (Simens v. Darwish, 100 AD3d 527 [1st Dept 2012]). Finally, to the extent that the motion is unopposed and, therefore, defendant has not raised the aforementioned obstacles to finding contempt without a hearing, the Appellate Division, First Department has determined this Court has an affirmative obligation to raise a defense, irrespective of whether advanced by a party (Pedraza v. New York City Transit Authority, 203 AD3d 95 [1st Dept 2022] ordering retrial on qualified immunity defense not raised by party at trial). Accordingly, it is ORDERED that decision is reserved on the motion following a contempt hearing; and it is further ORDERED that movant shall serve a copy of this order upon Mercedes Alduey via personal service no later than December 9, 2022, and proof of such service shall be filed to NYSCEF and provided to the Court at the time of the contempt hearing, below; and it is further ORDERED that a contempt hearing shall be held on December 14, 2022, at 11:00am in Courtroom 327 at 80 Centre Street New York, NY 10013, and shall proceed irrespective of the appearance of Mercedes Alduey or counsel on Mercedes Alduey’s behalf; and it is further ORDERED that should a finding of contempt be warranted, counsel shall be prepared to proffer the appropriate punishment for same, including the amount of any monetary fines. THIS CONSTITUTES THE INTERIM ORDER OF THE COURT. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED GRANTED IN PART X OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
