| Incorporated Vil. of Plandome Manor v Ioannou |
| 2008 NY Slip Op 06594 [54 AD3d 365] |
| August 12, 2008 |
| Appellate Division, Second Department |
| Incorporated Village of Plandome Manor,Respondent, v John Ioannou, Appellant. |
—[*1] Farrell Fritz, P.C., Uniondale, N.Y. (Bruce N. Roberts and Franklin C. McRoberts ofcounsel), for respondent.
In an action pursuant to Village Law § 7-714, inter alia, to permanently enjoin thedefendant from, among other things, constructing any structure for which no permit has beenissued, or which is the subject of a stop work order or a revoked permit, or from occupying anystructure for which no certificate of completion or occupancy has been issued, the defendantappeals from an order of the Supreme Court, Nassau County (Martin, J.), entered April 6, 2007,which granted the plaintiff's motion to hold him in civil contempt for violating a temporaryrestraining order of the same court (Jonas, J.), dated June 27, 2006, and imposed a fine in theamount of $250 plus the costs and expenses incurred by the plaintiff in making the motion.
Ordered that the order entered April 6, 2007 is modified, on the law, by adding to the firstsentence of the last paragraph on page two thereof the words "and that the defendant's conductwas calculated to, or actually did, defeat, impair, impede or prejudice the rights or remedies ofthe plaintiff"; as so modified, the order is affirmed, with costs to the plaintiff.
To sustain a finding of civil contempt, a court must find that the alleged contemnor violated alawful order of the court, clearly expressing an unequivocal mandate, of which that party hadknowledge, and that as a result of the violation a right of a party to the litigation was prejudiced(see Judiciary Law § 753 [A] [3]; McCain v Dinkins, 84 NY2d 216, 226[1994]; Matter of McCormick v Axelrod, [*2]59 NY2d574, 583 [1983]; Kalish v Lindsay,47 AD3d 889, 891 [2008]; Giano vIoannou, 41 AD3d 427 [2007]). "[I]t is not necessary that the disobedience be deliberateor willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if suchdisobedience defeats, impairs, impedes or prejudices the rights of a party" (Hinkson v Daughtry-Hinkson, 31AD3d 608, 609 [2006], quoting Jim Walter Doors v Greenberg, 151 AD2d 550, 551[1989]; see Conners v Pallozzi, 241 AD2d 719 [1997]; Italian Am. Civic Assn. ofMineola, N.Y. v Cataldo, 225 AD2d 733 [1996]; Gordon v Janover, 121 AD2d 599,600 [1986]).
Here, the record reveals that the defendant was aware of the clear and unequivocal temporaryrestraining order previously issued by the Supreme Court, and violated it, and that such conductdefeated, impaired, impeded, or prejudiced the plaintiff's rights or remedies. Contrary to thedefendant's contention, he failed to raise a factual issue warranting a hearing (see Cashman vRosenthal, 261 AD2d 287 [1999]). We note that, although the court failed to include in itsorder the required recital that the defendant's conduct was calculated to, or actually did, defeat,impair, impede, or prejudice the plaintiff's rights or remedies, the finding of contempt issupported by the record, and thus the omission was a mere irregularity that may be corrected onappeal (see Lopez v Ajose, 33AD3d 976, 977 [2006]; Raphael vRaphael, 20 AD3d 463, 464 [2005]; Home Surplus of Brooklyn v Home Surplus, 3 AD3d 472, 473[2004]). Prudenti, P.J., Covello, Balkin and Dickerson, JJ., concur.