Ween & Kozek, PLLC (Nina C. Oksman of counsel), for tenants-appellants. Windels Marx Lane & Mittendorf, LLP (Jason Frosch of counsel), for landlord-respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Remy Smith, J.), dated March 6, 2023. The order, insofar as appealed from, denied tenants' motion to hold respondent F.J.H. Realty, Inc. in civil and criminal contempt and for an award of attorney's fees.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this HP proceeding commenced in 2018 by residential occupants Aaron Scaturro, Arthur Purvis, and Shadrack Lindo (tenants), tenants alleged failures to repair numerous issues in the common areas and residential units covered under Article 7-C of the Multiple Dwelling Law, also known as the Loft Law. Tenants and landlord, F.J.H. Realty, Inc., entered into so-ordered stipulations dated April 12, 2018, July 19, 2018 and February 20, 2019. Three years later, they entered into a consent order dated February 15, 2022 (the Consent Order), which provided, among other things, that "This Stipulation constitutes the entire Stipulation between and among the Parties concerning the subject matter of this proceeding. Any prior statements, understandings and/or memoranda are merged into terms of this Stipulation and shall not survive" (the merger clause).

In September 2022, tenants moved to hold landlord in civil and criminal contempt of court for failing to comply with the so-ordered stipulations and the Consent Order, and for an award of attorney's fees as the prevailing parties in the proceeding. In a detailed order dated March 6, 2023, insofar as is relevant to this appeal, the Civil Court denied tenants' motion. It found that the merger clause subsumed all the prior stipulations and that, therefore, tenants could no longer seek to hold landlord in contempt for any violations of those stipulations; that "the language of the [Consent] Order allegedly breached did not sufficiently constitute a clear and [*2]unequivocal mandate," and that tenants were not entitled to an award of attorney's fees as the prevailing parties in this proceeding.

"In order to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with the contempt violated a clear and unequivocal mandate of the court, thereby prejudicing a right of another party to the litigation" (Riverside Capital Advisers, Inc. v First Secured Capital Corp., 43 AD3d 1023, 1024 [2007]; see Judiciary Law § 753 [A] [3]). "To be found guilty of criminal contempt, the contemnor usually must be shown to have violated the order with a higher degree of willfulness than is required in a civil contempt proceeding. Moreover, criminal contempt must be proven beyond a reasonable doubt" (Town Bd. of Town of Southampton v R.K.B. Realty, LLC, 91 AD3d 628, 629 [2012] [citations omitted]; see Matter of Department of Envtl. Protection of City of NY v Department of Envtl. Conservation of State of NY, 70 NY2d 233, 239 [1987]; see also Judiciary Law § 750 [A] [3]).

As to the branches of tenants' motion seeking to hold landlord in civil and criminal contempt based on violations of the so-ordered stipulations, we need not decide whether, as tenants argue, the Civil Court erred in finding that the merger clause barred such claims as, in any event, we find that tenants' delay in seeking to hold landlord in contempt for such violations was excessive (see Matter of Lipsig [Manus], 139 AD3d 600, 601 [2016]; Levin v Halvin Co., 63 AD2d 924, 925 [1978]).

We further find that tenants did not establish that landlord should be held in civil or criminal contempt for its alleged violations of the Consent Order. For example, the Consent Order was not unequivocal as to certain terms (such as the definition of "access" and "broken") or deadlines relevant to tenants' claims.^[FN1] To the extent tenants argue that any ambiguity found by the court must be resolved at a hearing, a "clear and unequivocal mandate" cannot be ambiguous, and therefore any such ambiguity is a justification for not holding landlord in contempt for a violation of the agreement (see Salinger v Salinger, 125 AD3d 747, 749 [2015]; Boster-Burton v Burton, 92 AD3d 909, 911 [2012]). Furthermore, the need to obtain building permits or other approvals may have significantly affected landlord's ability to legally complete certain work within the allegedly required time. To the extent tenants argue that they were not provided updates as to landlord's efforts to obtain permits and approvals, the Consent Order does not require landlord to provide unsolicited updates.

Tenants argue that, pursuant to their respective leases and Real Property Law § 234, they are entitled to attorney's fees as the prevailing parties in this proceeding because the Consent Order is favorable to them, even though it does not mention attorney's fees. Here, tenants' commercial leases include an attorney's fee provision in favor of landlord. Assuming, without deciding, that Real Property Law § 234 grants these tenants a reciprocal right to attorney's fees, [*3]tenants failed to demonstrate an "express reservation" of such right when entering into the Consent Order, and therefore it must be deemed to have been waived (Tapper v Jedrusiejko, 74 Misc 3d 132[A], 2022 NY Slip Op 50156[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Beka Realty, LLC v Gold, 65 Misc 3d 156[A], 2019 NY Slip Op 51953[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Harmir Realty Co. v Tesa, 2003 NY Slip Op 50015[U] [App Term, 1st Dept 2003]).

Accordingly, the order, insofar as appealed from, is affirmed.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.