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June 18, 2019

Expulsion from membership of an organization created by the New York State Legislature


Following a member [Petitioner] of a veteran's organization [Organization] created by the New York State Legislature in 1868 expulsion from the Organization.  he commenced a CPLR Article 78 proceeding seeking reinstatement. Supreme Court granted the petition to the extent of annulling Petitioner's expulsion and ordering the Organization to reinstate him as a member. Organization reinstated Petitioner's membership but then file new charges against him, which again resulted in his expulsion from membership in the Organization.

Petitioner, contending that by expelling him a second time, the Organization is in contempt of the Supreme Court's judgment asked the Appellate Division to find the Organization in civil contempt of the Supreme Court's directive.

Citing Garcia v Great Atlantic and Pacific Tea Co., 231 AD2d 401, the Appellate Division rejected Petitioner's claim. The court explained that in order to find a party in civil contempt, it must be determined that:

 [1] a lawful order of the court, clearly expressing an unequivocal mandate, was in effect;

 [2] that the party charged with contempt had notice of the order and disobeyed it; and

[3] the failure to comply with the order prejudiced the rights of a party to the litigation.

Here, however, the Appellate Division determined that although the Supreme Court's judgment mandated Petitioner's reinstatement, it did not address any future charges and nor did it hold that Petitioner could never be discharged from the Organization. In the words of the court, "[t]he sole mandate of the judgment, which was based exclusively on the first charges brought against [Petitioner], was for [the Organization] to reinstate Petitioner. As the Organization admittedly complied with that mandate, there was no violation such that a finding of contempt would be appropriate.

The Appellate Division also noted Petitioner's argument that he is entitled to [1] a determination as to his allegations of fraudulent conduct by other members of the Organization and [2] whether Organization followed proper procedure in expelling him a second time.

However, ruled the Appellate Division, as Petitioner's initial petition did not seek such determinations in his initial petition and only sought a determination involving the first set of charges brought against him by Organization, the Supreme Court's determination concerning that matter was fully disposed of by the court.

The decision is posted on the Internet at:


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