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Civil Contempt Does Not Include the Element of Willfulness/Adverse Inference May Be Drawn Re: Assertion of Privilege Against Self-Incrimination in Civil Contempt Proceeding

In a full-fledged opinion by Justice Angiolillo, the Second Department cleared up some confusion created by conflicting authority concerning whether willfulness was an element of civil contempt.  The defendant was held in contempt based upon his failure to deposit the proceeds of the sale of marital property with the court. The Second Department concluded willfulness is not an element of civil contempt.  In addition, the Second Department explained that the defendant’s assertion of his Fifth Amendment privilege against self-incrimination in the contempt proceedings did not preclude the court from drawing an adverse inference and did not relieve the defendant of his burden of proof:

…[W]e conclude that, for the plaintiff to prevail on her motion to hold the defendant in civil contempt, she was required to prove by clear and convincing evidence “(1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct” … . The use of the words “willful” and “willfully” in some of our cases involving civil contempt …, should not be construed to import the element of willfulness into a civil contempt motion made pursuant to Judiciary Law § 753(A)(3). “It is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party” … . * * *

“[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them” … . “In New York, unlike the rule in a criminal case, a party’s invocation of the privilege against self-incrimination in a civil case may be considered by the finder of the facts in assessing the strength of the evidence offered by the opposing party on the issue which the witness was in a position to controvert” … .  El-Dehdan v El-Dehdan, 2013 NY Slip Op 08404, 2nd Dept 12-18-13

 

 

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