ORDERED that the appeal from the amended order is dismissed, as the amended order was superseded by the order, made upon reargument; and it is further,
ORDERED that the order is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff. In this matrimonial action, the plaintiff and the defendant John Andrew Foley, as guardian for Michael J. Foley (hereinafter the decedent), the plaintiff's husband at the time, entered into a stipulation of settlement dated October 7, 2013, which, inter alia, provided that the decedent would pay to the plaintiff $600,000 as a distributive award, $75,000 of which was to be paid within 30 days, and $525,000 of which was to be paid by December 31, 2013. The stipulation of settlement was incorporated, but not merged, into a judgment of divorce dated January 9, 2014. The decedent died in April 2014 in Connecticut, where his will was admitted to probate. John Andrew Foley and the defendant Benjamin Foley were named co-executors of the decedent's estate.
In July 2015, the plaintiff moved, among other things, to substitute John Andrew Foley and Benjamin Foley, as executors of the decedent's estate, and the decedent's estate as defendants for the purpose of enforcing the stipulation of settlement, contending that the $525,000 balance of the distributive award was never paid. In an order dated October 28, 2015, the Supreme [*2]Court, inter alia, granted that branch of the plaintiff's motion which was to substitute John Andrew Foley, Benjamin Foley, and the decedent's estate as defendants. This Court affirmed so much of the order as granted that branch of the plaintiff's motion which was to substitute Benjamin Foley as a defendant (see Foley v Foley,
151 AD3d 1018). Subsequently, the plaintiff moved, among other things, to hold the defendants in civil contempt for failing to comply with the stipulation of settlement (hereinafter the plaintiff's underlying motion). A special referee assigned to hear and report on the matter recommended, inter alia, that the plaintiff's underlying motion be denied on the basis that the order dated October 28, 2015, had already denied the plaintiff's request for identical relief and was law of the case. The special referee further recommended that a cross-motion by the defendants, among other things, to dismiss the
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plaintiff's underlying motion on the ground of forum non conveniens and for an accounting with regard to certain real property allegedly not turned over by the plaintiff to the defendants also be denied. In an order dated August 23, 2018, the Supreme Court, inter alia, denied that branch of a motion by the plaintiff which was to reject so much of the special referee's report and recommendation as recommended denying the plaintiff's underlying motion, denied that branch of a motion by the defendants which was to reject so much of the special referee's report and recommendation as recommended denying their cross-motion, and confirmed the special referee's report and recommendation. The plaintiff appealed, and the defendants cross-appealed, from that order. In a decision and order dated January 27, 2021, this Court dismissed the cross-appeal as abandoned, reversed the order dated August 23, 2018, insofar as appealed from, granted that branch of the plaintiff's motion which was to reject so much of the special referee's report and recommendation as recommended denying the plaintiff's underlying motion, and remitted the matter to the Supreme Court, Westchester County, for a determination on the merits of the plaintiff's underlying motion (see Foley v Foley, 190 AD3d 953).
Upon remittitur and after a hearing, in an amended order dated May 5, 2023, the Supreme Court granted the plaintiff's underlying motion. The defendants thereafter moved for leave to reargue their opposition to the plaintiff's underlying motion. In an order dated November 21, 2023, the court granted leave to reargue and, upon reargument, adhered to the determination in the amended order dated May 5, 2023, granting the plaintiff's underlying motion. The defendants appeal.
As a general rule, we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution, although we have the inherent jurisdiction to do so (see HSBC Bank, USA, N.A. v Santella, 243 AD3d 897, 898; Deutsche Bank Natl. Trust Co. v Light, 235 AD3d 946,
948). Here, the defendants previously cross-appealed from the order dated August 13, 2018, which, among other things, confirmed so much of the special referee's report and recommendation as recommended denying those branches of their cross-motion which were to dismiss the plaintiff's underlying motion on the ground of forum non conveniens and for an accounting with regard to certain real property allegedly not turned over by plaintiff to defendants, but they failed to timely perfect the cross-appeal, resulting in its dismissal (see Foley v Foley, 190 AD3d at
953). The defendants' present contentions that the plaintiff repudiated and materially breached her obligations pursuant to the judgment of divorce and the stipulation of settlement by failing to transfer certain real property to the estate and that, as a matter of full faith and credit, the plaintiff was precluded from making her underlying motion by reason of the probate proceeding in Connecticut and Connecticut law could have been raised on their earlier cross- appeal. We decline to exercise our jurisdiction to consider these issues here (see HSBC Bank, USA, N.A. v Santella, 243 AD3d at 898; Deutsche Bank Natl. Trust Co. v Light, 235 AD3d at 948).
Upon reargument, the Supreme Court properly adhered to the determination granting the plaintiff's underlying motion. Judiciary Law § 753(A)(3) permits a court to punish a party for civil contempt "for the non-payment of a sum of money, ordered or adjudged by the court to be paid, in a case where by law execution can not be awarded for the collection of such sum." Contrary to the defendants' contention, this is a case where, by law, execution cannot be awarded. Therefore, the remedy of contempt was available (cf. Matter of Lew v Sobel, 172 AD3d 1208, 1210; Liang v [*3]Yi Jing Tan, 155 AD3d 1023, 1024).
"To prevail on a motion to punish for civil contempt, the movant must establish by clear and convincing evidence: (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the party against whom contempt is sought disobeyed the order, (3) that the party who disobeyed the order had knowledge of its terms, and (4) that the movant was prejudiced by the offending conduct" (Dahan v Dahan, 237 AD3d 794, 796 [internal quotation marks omitted]; see El-Dehdan v El-Dehdan, 26 NY3d 19, 29; Lombardi v Lombardi, 229 AD3d 537, 538; see also Judiciary Law § 753[A][3]). "'Once the movant establishes a knowing failure to comply with a clear and unequivocal mandate, the burden shifts to the alleged contemnor to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order'" (Lombardi v Lombardi, 229 AD3d at 538 [internal quotation marks omitted], quoting Anonymous 2011-3 v Anonymous 2011-4, 219 AD3d 558, 559; see El-Dehdan v El-Dehdan, 26 NY3d at
29).
Here, the plaintiff demonstrated that the defendants failed to comply with a clear and unequivocal mandate set forth in the stipulation of settlement, which was incorporated into the judgment of divorce, by failing to pay the distributive award balance of $525,000 (see El-Dehdan v El-Dehdan, 26 NY3d at 29; Anonymous 2011-3 v Anonymous 2011-4, 219 AD3d at 559-560). As the Supreme Court properly determined, the defendants did not refute this showing or establish an inability to comply with this mandate (see Anonymous 2011-3 v Anonymous 2011-4, 219 AD3d at 560; Bauman v Bauman, 208 AD3d 624, 626).
DILLON, J.P., BRATHWAITE NELSON, DOWLING and QUIRK, JJ., concur.
ENTER:
Darrell M. Joseph Clerk of the Court
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