Petitioner-plaintiff Beatrice L. Berle ("petitioner") moves pursuant to Judiciary Law §§ 750, 751 and 753 for an order holding respondent-defendant Abdon J. Buckley, Jr. ("respondent") in criminal and civil contempt. Petitioner claims that respondent has willfully refused to comply with the Decision, Order & Judgment ("Judgment") of this Court dated January 29. 2008.

BACKGROUND

The background to this action is set forth in the Court's prior decision and will not be repeated here. Suffice it to say, petitioner brought this hybrid petition-action seeking an order granting specific performance of a certain Buy-Sell Agreement, dated September 13, 2007, and compelling respondent to transfer his one-third membership interest in Berle Farm, LLC ("the LLC") to her in accordance with such agreement.

The Court granted the requested relief, providing in pertinent part:

ORDERED and ADJUDGED that plaintiff is entitled to specific performance of the Buy-Sell Agreement; and it is further

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ORDERED, ADJUDGED and DECREED that defendant Buckley shall transfer his one-third (1/3) membership interest in the Berle Farm, LLC to plaintiff for a lump sum payment of $267,566, subject to negotiated terms and conditions of the Buy-Sell Agreement, within thirty days of service of this Decision, Order & Judgment with notice of entry, at a closing to be held at the offices of plaintiff's counsel (or such other location that plaintiff shall designate).

CPLR 5519 (a) provides, in pertinent part:

4. the judgment or order directs the assignment or delivery of personal property, and the property is placed in the custody of an officer designated by the court of original instance to abide the direction of the court to which the appeal is taken, or an undertaking in a sum fixed by the court of original instance is given that the appellant or moving party will obey the direction of the court to which the appeal is taken; or

5. the judgment or order directs the execution of any instrument, and the instrument is executed and deposited in the office where the original judgment or order is entered to abide the direction of the court to which the appeal is taken; or

6. the appellant or moving party is in possession or control of real property which the judgment or order directs be conveyed or delivered, and an undertaking in a sum fixed by the court or original instance is given . . . ; or

7. the judgment or order directs the performance of two or more of the acts specified in subparagraphs two through six and the appellant or moving party complies with each applicable subparagraph.

It is apparent that the decretal provisions of the Judgment implicate both paragraphs (4) and (5) of subdivision (a) of CPLR 5519. The Judgment required the transfer of a membership interest in a limited liability company, which, contrary to respondent's contention, is a form of personal property (see Limited Liability Company Law § 601; see also Yonaty v. Glauber, 40 AD3d 1193, 1195 [3d Dept 2007]). Further, contrary to petitioner's contention, the Judgment implicitly required the parties to execute a written instrument binding them to the negotiated terms and conditions of the Buy-Sell Agreement, to which such transfer was subject.

Under these circumstances, CPLR 5519 (a) (7) expressly requires respondent to comply with the provisions of both paragraphs (4) and (5) in order to obtain an automatic stay of enforcement. It is undisputed that respondent has not, in fact, complied with CPLR 5519 (a) (4). Further, given that the "Bill of Sale and Assignment" filed by respondent does not include the "negotiated terms and conditions of the Buy-Sell Agreement," to which the transfer is subject, the Court rejects the argument that it is the instrument that respondent implicitly was directed to execute. Based on the foregoing, the Court concludes that respondent has not obtained a stay pursuant to CPLR 5519 and is in violation of the Judgment.

That conclusion, however, is not dispositive of the contempt issue. To succeed in establishing civil or criminal contempt, petitioner must demonstrate, inter alia, that respondent's violation of the Court's order was willful (see Matter of McCormick v. Axelrod, 59 NY2d 574, 583-84 [1983]). Given that this application presents questions of law and respondent's actions were guided by counsel at every stage of post-judgment proceedings, the Court concludes that petitioner cannot demonstrate the degree of willfulness necessary to support the imposition of contempt sanctions. However, petitioner may renew her application for contempt sanctions if [*3]respondent has failed to: (a) comply with the Judgment within fourteen (14) days of service of this Decision & Order with notice of entry, (b) secure an automatic stay by compliance with paragraphs (4) and (5) of CPLR 5519 (a), in accordance with the foregoing; or (c) obtain a discretionary stay of enforcement by a court of competent jurisdiction.

The Court has considered the parties' remaining arguments and finds them to be without merit or unnecessary to the disposition of this application.

Accordingly, it is

ORDERED that petitioner's motion to hold respondent in criminal and civil contempt is denied without prejudice, in accordance with the foregoing.

This constitutes the Decision & Order of the Court. All papers, including this Decision & Order are being returned to plaintiff's counsel. The signing of this Decision & Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.

Dated: Albany, New York

April 11, 2008

RICHARD M. PLATKIN

A.J.S.C.

Papers Considered:

Notice of Motion for Contempt, dated March 18, 2008;

Affidavit of Christopher E. Buckey, Esq., sworn to March 18, 2008, with attached exhibits A-I;

Affidavit of Leah W. Casey, Esq., sworn to March 31, 2008;

Affidavit of Abdon J. Buckley, sworn to March 31, 2008;

Reply Affidavit of Christopher Buckey, Esq., sworn to April 7, 2008.