| Aison v Hudson Riv. Black Riv. Regulating Dist. |
| 2008 NY Slip Op 06519 [54 AD3d 457] |
| August 7, 2008 |
| Appellate Division, Third Department |
| Howard M. Aison, Appellant, v Hudson River Black RiverRegulating District, Respondent. |
—[*1] Crane, Parente & Cherubin, Albany (David M. Cherubin of counsel), forrespondent.
Rose, J. Appeal from an order of the Supreme Court (Sise, J.), entered February 21, 2007 inFulton County, which denied plaintiff's motion to hold defendant in contempt of court.
Plaintiff, along with other property owners, commenced an action seeking a determination oftheir rights to use a beach and swimming area in Sacandaga Park in the Town of Northampton,Fulton County. Ultimately, the parties entered into a stipulation which declared that defendant"shall regulate and control the beach and swimming area." To do so, the stipulation also providedthat defendant "may . . . mak[e] reasonable rules and regulations governing the useof said beach and swimming area for the enjoyment of permit holders." An annual permit systemwas to be promulgated by defendant. A judgment setting forth the stipulation's terms was enteredin 2003. Contending that defendant had failed to obey the terms of the stipulation and judgment,plaintiff moved, in 2006, to hold defendant in contempt. Supreme Court denied the motion,prompting this appeal.
We affirm. To warrant a finding of civil contempt, it must be shown that, to a reasonabledegree of certainty, a party has knowingly disobeyed a clear and unequivocal mandate of thecourt which results in prejudice to the rights of another party (see Judiciary Law §753 [A] [3]; Tel Oil Co. v City of Schenectady, 292 AD2d 725 [2002]). Contempt shouldnot be granted unless the order or judgment allegedly violated is clear and explicit and unless theact complained of is clearly proscribed (see Matter of Hoglund v Hoglund, 234 AD2d794 [1996]). [*2]In the instant case, plaintiff alleged threealternative bases for holding defendant in contempt of the terms of the stipulation. First, heargued that defendant improperly stored boat docks, a pontoon boat and personal watercraft inthe beach and swimming area at issue. Second, defendant allowed others to do so. Third, byallowing either the first or second to occur, defendant was not properly regulating or controllingthe beach and swimming area. According to plaintiff, any of the three scenarios constituted adirect violation of the terms of the stipulation.
We, however, agree with Supreme Court's conclusion that the stipulation did not set forth aclear and unequivocal mandate requiring defendant to prohibit the use of the beach andswimming area for docks and watercraft or directing it to enact regulations to that effect. Thestipulation did specifically prohibit the use of the beach and swimming area concerning pets,glass, coolers, cooking or barbecue equipment as well as large gatherings. Notably, however, thestipulation made no mention whatsoever of boat docks, pontoon boats or personal watercraft. Itdid not specify how defendant was to regulate and control the beach and swimming area in thisregard other than a general requirement to make "reasonable rules and regulations." Since therewas no clear and direct prohibition to permitting the complained of activities, defendant couldnot be held in contempt (see Matter of Augat v Hart, 244 AD2d 800 [1997]; Matter ofPerazone v Perazone, 188 AD2d 750 [1992]).
Mercure, J.P., Kane, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isaffirmed, without costs.