| Dietrich v Michii |
| 2008 NY Slip Op 10446 [57 AD3d 1527] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| Deena K. Dietrich, Respondent, v Takako Michii,Appellant. |
—[*1] Robert R. Radel, Buffalo, for plaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), entered July 14,2008. The order, upon finding defendant in contempt of court, imposed a fine and a term of intermittentincarceration.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this action for breach of contract, defendant appeals from an order finding her incontempt of court for failing to comply with the terms of a prior order and imposing sanctions thatincluded, inter alia, a term of intermittent incarceration. Contrary to defendant's contention, plaintiffestablished by clear and convincing evidence that defendant, a judgment debtor, refused to obey theprior order (see Gray v Giarrizzo, 47AD3d 765 [2008]), and that her conduct did "defeat, impair, impede, [and] prejudice the rights[and] remedies of" plaintiff (Judiciary Law § 770). Consequently, Supreme Court providentlyexercised its discretion in imposing a term of intermittent incarceration upon finding defendant in civilcontempt (see § 753 [A] [1]; cf. Gray, 47 AD3d at 766; see generallyMcCain v Dinkins, 84 NY2d 216, 225-226 [1994]). Indeed, the record supports the court'sdetermination that defendant failed to present credible evidence that she was financially unable tocomply with the prior order (see Matter of Powers v Powers, 86 NY2d 63, 69-70 [1995];Matter of Commissioner of Social Servs. v Rosen, 289 AD2d 487, 488 [2001]; cf. Joachim vJoachim, 57 AD2d 546 [1977], appeal dismissed 42 NY2d 1011 [1977], cert denied434 US 1066 [1978]). Present—Scudder, P.J., Smith, Centra and Fahey, JJ.