I. Statement Pursuant to CPLR §2219 [a]

The following e-filed documents listed on NYSCEF (Motion No. 007) numbered 174-181, 184-189 were read on this motion. The Court has considered Plaintiff's Order to Show [*2]Cause seeking, inter alia, contempt, modification of custody and occupancy, attorneys' fees, sanctions, and related relief:

1. Order to Show Cause dated November 26, 2025;

2. Affirmation of Lisa Giovinazzo, Esq., dated November 26, 2025, with exhibits;

3. Affidavit of CW, sworn to November 26, 2025;

4. Affidavit in Opposition of JW, sworn to December 9, 2025;

5. All prior pleadings and proceedings on file herein.

II. Facts

This matrimonial action arises from a dispute concerning custody, supervision, and residential occupancy of the parties' minor child, CJW, age seventeen.

Pursuant to Defendant's prior Order to Show Cause, Defendant was awarded temporary legal and physical custody of the child, together with exclusive use and occupancy of the marital residence located at XX Redacted Avenue, Staten Island, New York. As a direct consequence of that Order, Plaintiff was compelled to vacate the marital residence and secure alternative housing, notwithstanding that her son remained in the subject premises.

The record reflects that Defendant obtained such relief upon his express representations to the Court that he would reside in the marital residence with the child and provide full-time parental supervision and care. Plaintiff alleges, under oath, that such representations were false when made and have been egregiously violated since entry of the temporary order.

Plaintiff avers that since Defendant obtained custody and exclusive occupancy: Defendant does not reside in the marital residence overnight; Defendant instead resides next door at XX Redacted Avenue, an investment property; Defendant has characterized the marital residence as being in "squalor" and unfit for habitation, yet nonetheless leaves the minor child there alone overnight on a recurring basis; CJW attends high school and works after school, often returning in the evening to a home where Defendant is "rarely, if ever, present"; Plaintiff has received reports from both CJW and concerned third parties that the child is routinely left unsupervised overnight.

Plaintiff further avers that the child suffers emotional strain, instability, and lack of parental structure as a direct result of Defendant's conduct. Of particular weight, Plaintiff attests that she was contacted by the Administration for Children's Services (ACS) immediately prior to filing her affidavit and informed that a home visit had been conducted and removal of the child from the residence was under consideration.

Defendant, in opposition, denies contemptuous conduct, asserts that Plaintiff has failed to attach the allegedly violated order, and contends that Plaintiff's motion is retaliatory, meritless, and unsupported by competent proof. Defendant further references a September 8, 2025 Consent Order granting him temporary custody, and a prior Decision and Order of the Court finding him fit as a custodial parent. Defendant argues that Plaintiff is attempting to relitigate custody through the guise of contempt and sanctions.

III. Conclusions of Law

A. Civil Contempt

To sustain a finding of civil contempt under Judiciary Law § 753, the moving party must establish, by clear and convincing evidence:

1. A lawful order of the court clearly expressing an unequivocal mandate;

2. Knowledge of the order by the alleged contemnor;

3. Disobedience of the order; and

4. Prejudice to the rights of a party. (McCormick v Axelrod, 59 NY2d 574 [1983]).

Here, the record establishes, and Defendant does not dispute, the existence of a valid temporary custody and occupancy order granting him legal and physical custody of the child and exclusive use and occupancy of the marital residence. Defendant's knowledge of that order is incontrovertible, as it was entered upon his own application.

Plaintiff's sworn submissions allege a sustained course of conduct whereby Defendant abandons the residence overnight, leaves the minor child without supervision, and resides at an alternate property, directly contradicting the very representations upon which the temporary order was predicated. Such conduct, if credited, constitutes both disobedience of the custodial mandate and misuse of the exclusive occupancy provision.

Prejudice is explicit. Plaintiff was displaced from her home based upon Defendant's representations of parental occupancy and supervision. The minor child, by Defendant's alleged conduct, has been left without adult supervision in a residence Defendant himself deems unsuitable for habitation.

However, contempt is a drastic remedy, and the Court is constrained by the sharply conflicting affidavits. Defendant squarely contests the alleged violations and challenges the sufficiency of Plaintiff's documentary proof. On the instant record, while the allegations are deeply troubling and raise serious child welfare concerns, the Court finds that triable issues of fact exist as to willfulness and the precise nature and extent of Defendant's compliance with the custodial order.

Accordingly, that branch of Plaintiff's motion seeking an immediate adjudication of civil contempt is denied without prejudice, and the issue shall be set down for an evidentiary hearing.

B. Alleged Child Neglect and Emergency Custody Relief

Plaintiff invokes Family Court Act § 1012 [f] and controlling appellate authority establishing that a parent's failure to exercise a minimum degree of care in supervision or guardianship, creating an imminent risk of impairment, constitutes neglect.

Plaintiff's sworn factual allegations describe: Repeated overnight abandonment of the child; Lack of consistent parental supervision; Residence in conditions Defendant himself characterizes as uninhabitable; Emotional distress to the child; and Active ACS involvement with potential removal under consideration.

Defendant's opposition does not directly refute the asserted overnight absences in a manner sufficient to eliminate the raised safety concerns, instead focusing on procedural and credibility arguments.

Under Domestic Relations Law § 240, the Court's paramount obligation is the best interests of the child, and the statute expressly authorizes emergency judicial intervention where a child's welfare is threatened. The allegations before the Court, corroborated by the acknowledged involvement of ACS, establish a prima facie showing of imminent risk sufficient to warrant immediate court oversight, irrespective of ultimate custody determinations.

Accordingly, that branch of Plaintiff's motion seeking emergency review and potential modification of the existing custodial and residential arrangements is granted to the extent of directing an immediate evidentiary hearing on temporary custody, supervision, and residential conditions, on an expedited basis.

C. Attorneys' Fees and Sanctions

Plaintiff seeks attorneys' fees pursuant to Domestic Relations Law § 237 [a] and sanctions under 22 NYCRR § 130-1.1, alleging frivolous conduct and material misrepresentations by Defendant.

The statute creates a rebuttable presumption in favor of awarding counsel fees to the less-monied spouse to ensure parity in matrimonial litigation. Plaintiff has detailed, through counsel's sworn affirmation, extensive billing history, hourly rates, and the financial strain incurred as a result of motion practice allegedly necessitated by Defendant's conduct.

However, the Court cannot, on this conflicting record, determine: The parties' respective financial circumstances with sufficient precision; Whether Defendant's conduct rises to the level of statutory frivolity; or Whether the prosecution of the underlying motion will ultimately be deemed substantially justified or not.

Sanctions require a clear showing of conduct that is completely without merit in law or undertaken primarily to delay, harass, or maliciously injure. That ultimate determination necessarily awaits factual development.

Accordingly, the branches of the motion seeking attorneys' fees and sanctions are held in abeyance pending the outcome of the evidentiary hearing directed herein.

IV. Conclusion and Decretal Paragraphs

Accordingly, it is hereby:

ORDERED, that the branch of Plaintiff's motion seeking an immediate finding of civil contempt is DENIED WITHOUT PREJUDICE, with leave to renew upon the completion of an evidentiary hearing; and it is further

ORDERED, that the branch of Plaintiff's motion seeking emergency judicial intervention under Domestic Relations Law § 240 is GRANTED TO THE EXTENT that an expedited evidentiary hearing shall be conducted to determine:

1. The current residential conditions at XX Redacted Avenue;

2. The nature and extent of Defendant's supervision of the minor child;

3. Whether modification of temporary legal and/or physical custody is required to protect the child's best interests; and

4. Any interim support obligations that may arise from a change in residential placement; and it is further

ORDERED, that the branches of Plaintiff's motion seeking attorneys' fees under Domestic Relations Law § 237(a) and sanctions under 22 NYCRR § 130-1.1 are HELD IN ABEYANCE pending the outcome of the foregoing hearing; and it is further

ORDERED, that the parties shall appear for said evidentiary hearing on a date to be fixed by further order of the Court; and it is further

ORDERED, that such other and further relief as the Court deems just and proper shall be [*3]considered upon the full development of the record.