| Parker v Top Homes, Inc. |
| 2009 NY Slip Op 00515 [58 AD3d 817] |
| January 27, 2009 |
| Appellate Division, Second Department |
| Jimmy Parker, Respondent, v Top Homes, Inc., Appellant,et al., Defendants. |
—[*1] Litwack & Litwack, P.C., Bayside, N.Y. (Kenneth Litwack and Maureen A. Gest ofcounsel), for respondent.
In an action pursuant to RPAPL article 15 to quiet title to real property, the defendant TopHomes, Inc., appeals (1) from a money judgment of the Supreme Court, Kings County (Bayne,J.), dated April 24, 2007, which, upon an order of the same court dated November 28, 2006, interalia, granting the plaintiff's motion to hold it in contempt for violating temporary restrainingorders, is in favor of the plaintiff and against it in the principal sum of $10,000 as a fine forcontempt, and (2), as limited by its brief, from so much of an order of the same court dated July31, 2007, as, in effect, denied its motion to vacate an order dated March 6, 2007, granting theplaintiff's motion to strike its answer upon its defaults in opposing the motion and in appearingon the return date for the motion, and for leave to enter a default judgment against it.
Ordered that the money judgment is affirmed, without costs or disbursements; and it isfurther,
Ordered that the order dated July 31, 2007, is reversed insofar as appealed from, on the law,without costs or disbursements, the motion of the defendant Top Homes, Inc., to vacate the order[*2]dated March 6, 2007, is granted, and thereupon, the plaintiff'smotion to strike that defendant's answer is denied.
The plaintiff and the defendant Top Homes, Inc. (hereinafter Top Homes), own adjoiningresidential lots in Brooklyn. Top Homes purchased the land from the defendants Urgent Griffithsand Lola Griffiths. At the time that Top Homes purchased the land, a brick wall separated thetwo properties. Top Homes claimed that 2.5 feet of land located on the plaintiff's side of thebrick wall belonged to it and informed the plaintiff that it intended to demolish the wall andbuild on the 2.5 feet of land.
The plaintiff commenced this action to quiet title to the disputed property based on his claimof adverse possession and, at the same time, moved for a preliminary injunction enjoining TopHomes from demolishing the wall. The court issued temporary restraining orders against TopHomes, temporarily enjoining it from demolishing the wall and beginning construction on thedisputed property, but Top Homes disobeyed such orders. As a result, the plaintiff moved to holdTop Homes in contempt. Top Homes cross-moved to dismiss the complaint pursuant to CPLR3211 (a) (8), arguing that the court did not have jurisdiction over it because it had not beenproperly served with the summons and complaint and the temporary restraining orders. TopHomes requested a hearing to determine the validity of service.
The court did not conduct a hearing to determine the validity of service, and, in an orderdated November 28, 2006, it granted the plaintiff's separate motions for a preliminary injunctionand to hold Top Homes in contempt for violating the temporary restraining orders and, in effect,denied Top Homes's cross motion to dismiss the complaint. The court determined that TopHomes should be fined in the amount of $10,000 and issued a money judgment in the plaintiff'sfavor in that amount.
We conclude that the Supreme Court properly held Top Homes in contempt and imposed afine against it for its failure to abide by the court's temporary restraining orders without firstholding a hearing to determine whether Top Homes had been properly served with the temporaryrestraining orders and the summons and complaint. The affidavits of the process serversconstituted prima facie evidence of proper service pursuant to CPLR 308 (1) (see Commissioners of State Ins. Fund vNobre, Inc., 29 AD3d 511 [2006]; Wieck v Halpern, 255 AD2d 438 [1998];Green Point Sav. Bank v Clark, 253 AD2d 514 [1998]). Top Homes failed to submit asworn denial of service or specific statements to rebut the statements in the process servers'affidavits (see Puco v DeFeo, 296 AD2d 571 [2002]; European Am. Bank vAbramoff, 201 AD2d 611 [1994]).
After the court issued the order dated November 28, 2006, Top Homes continued withconstruction on the disputed property despite the issuance of the preliminary injunction. Theplaintiff then moved to strike Top Homes' answer due to its continuing violation of thetemporary restraining orders and the preliminary injunction. Top Homes failed to submitopposition papers or to appear at the oral argument on the motion and, in an order dated March6, 2007, the court granted the plaintiff's motion to strike its answer and for leave to enter adefault judgment against it. Top Homes then moved to vacate the order dated March 6, 2006.The court, in effect, denied that motion in an order dated July 31, 2007.
Top Homes established that it had a reasonable excuse for its failure to respond to theplaintiff's motion to strike its answer and for leave to enter a default judgment against it.Furthermore, it demonstrated a meritorious defense to the plaintiff's motion. Accordingly, theSupreme Court should have [*3]granted Top Homes's motion tovacate the order dated March 6, 2006 (see CPLR 5015 [a]). The plaintiff sought to strikeTop Homes's answer due to its continuing violation of the temporary restraining orders and thepreliminary injunction. Pursuant to Judiciary Law § 753, a court wishing to punish a partyfor violating a temporary restraining order or preliminary injunction can only impose a fine orimprisonment, or both. The Supreme Court exceeds its authority when it fashions a remedy notcontemplated by the statute (see Pitterson v Watson, 299 AD2d 467 [2002]; McCainv Dinkins, 192 AD2d 217 [1993]; Couture v Garland, 105 AD2d 1158 [1984]).Therefore, the Supreme Court was without authority to strike Top Homes's answer aspunishment for violation of the temporary restraining orders and preliminary injunction.Accordingly, upon vacating the order dated March 6, 2006, the Supreme Court should havedenied the plaintiff's motion to strike Top Homes's answer and for leave to enter a defaultjudgment against it. Spolzino, J.P., Ritter, Santucci and Carni, JJ., concur.