| Beneke v Town of Santa Clara |
| 2009 NY Slip Op 02514 [61 AD3d 1079] |
| April 2, 2009 |
| Appellate Division, Third Department |
| J. David Beneke, Individually and as Trustee of the J. DavidBeneke Trust, Appellant-Respondent, v Town of Santa Clara et al., Respondents-Appellants, etal., Defendants. |
—[*1] Green & Seifter, P.L.L.C., Syracuse (James L. Sonneborn of counsel), for Town of SantaClara, respondent-appellant.
Peters, J.P. (1) Cross appeals from an order of the Supreme Court (Demarest, J.), enteredMarch 18, 2008 in Franklin County, which partially granted a motion by certain defendants for,among other things, the imposition of a fine upon plaintiff pursuant to Executive Law §382, and (2) appeal from the judgment entered thereon.
Having been before this Court on four prior occasions, the underlying facts of this case arefully set out in those decisions (45 AD3d 1164 [2007], lv denied 10 NY3d 706 [2008];36 AD3d 1195 [2007], lv dismissed 8 NY3d 938 [2007]; 28 AD3d 998 [2006]; Matter of Beneke v Town of SantaClara, 9 AD3d 820 [2004]). Succinctly stated, following plaintiff's unauthorizedconstruction of a floating boathouse on the shoreline of Upper Saranac Lake in the Town ofSanta Clara, Franklin County in 2001, and in the face of continuing legal efforts by defendantTown of Santa Clara to compel its removal as in violation of its local laws, plaintiff haspersistently refused to remove the boathouse and engaged in protracted litigation against the[*2]Town. Upon our most recent review, we affirmed SupremeCourt's February 2007 order compelling the removal of the boathouse by June 1, 2007 (45 AD3d1164 [2007], supra). Not surprisingly, plaintiff failed to do so by the date prescribed bySupreme Court. Thereafter, the Town, defendant Town Board and certain town officials(hereinafter collectively referred to as the Town defendants) moved for an order compelling theboathouse's removal, holding plaintiff in contempt, awarding counsel fees and costs, andimposing fines for violation of the Uniform Fire Prevention and Building Code pursuant toExecutive Law § 382 (2). While that motion was pending, plaintiff removed theboathouse. Supreme Court, among other things, assessed a fine against plaintiff under ExecutiveLaw § 382 (2) in the amount of $200,000. The court also denied the Town defendants'application for a finding of contempt and counsel fees, stating that, "[a]lthough the facts areundisputed and a finding of contempt could be made summarily, there is no need to do so at thistime in light of the penalties imposed." These cross appeals ensued.
Plaintiff contends that the Town was not authorized to seek imposition of a fine pursuant toExecutive Law § 382 (2) in this civil action because the remedies set forth in thatprovision are strictly criminal in nature. As plaintiff failed to advance this argument beforeSupreme Court, we will not consider the issue on appeal (see State Farm Fire & Cas. Co. v Dayco Prods., Inc., 19 AD3d923, 926 [2005]; Snyder v Newcomb Oil Co., 194 AD2d 53, 61 [1993]; Matterof Manhattan Indus. v Tully, 88 AD2d 737, 738 [1982]). Further, to the extent that plaintiffchallenges the basis for Supreme Court's decision to fix the amount of fines at $200,000, thecourt appropriately set forth its reasoning and we find no basis upon which to disturb itsdetermination in that regard.
Turning to the cross appeal by the Town defendants, we conclude that a finding of civilcontempt against plaintiff was warranted. In order to make such a finding, "it must be establishedthat there was a lawful court order in effect that clearly expressed an unequivocal mandate, thatthe person who allegedly violated the order had actual knowledge of its terms, and that his or heractions or failure to act defeated, impaired, impeded or prejudiced a right of the moving party"(Matter of Aurelia v Aurelia, 56AD3d 963, 964 [2008]; see Judiciary Law § 753 [A] [3]; Aison v Hudson Riv. Black Riv.Regulating Dist., 54 AD3d 457, 458 [2008]).
Here, Supreme Court's February 2007 order clearly and unequivocally compelled plaintiff toremove the boathouse by June 1, 2007. Despite the fact that plaintiff was granted a stay of thisorder until July 20, 2007, he nonetheless continued to flout Supreme Court's directive by failingto remove the boathouse by this date. While the orders also authorized the Town to remove theboathouse in the event that plaintiff failed to do so by the date prescribed, this language did not,as plaintiff argues, provide him with an option to allow the Town to remove the boathouse but,instead, only permitted the Town to take remedial action if plaintiff failed to comply with thecourt's orders. Indeed, the Town would have no legal right under the orders to take any action toremove the boathouse unless plaintiff failed to do so by the prescribed date. In our view,this record permits only one conclusion, that plaintiff brazenly and willfully disobeyed the clearand explicit orders of Supreme Court, thereby impairing the Town's rights. Consequently, wefind that Supreme Court abused its discretion in declining to hold plaintiff in contempt. Thematter must therefore be remitted for a determination as to the appropriate sanction to beimposed (see Judiciary Law § 753 [A]).
The parties' remaining contentions are either unpreserved or have been rendered academicby our decision.[*3]
Rose, Lahtinen, Kane and Stein, JJ., concur. Ordered thatthe order and judgment are modified, on the law, without costs, by reversing so much thereof asdenied the motion by the Town defendants for a finding of contempt; motion to hold plaintiff incontempt granted, and matter remitted to the Supreme Court for further proceedings notinconsistent with this Court's decision; and, as so modified, affirmed. [See 19 Misc 3d591.]