| Matter of People v Hooks |
| 2009 NY Slip Op 05937 [64 AD3d 1075] |
| July 23, 2009 |
| Appellate Division, Third Department |
| In the Matter of the People of the State of New York, by ElliotSpitzer, as Attorney General of the State of New York, Respondent, v Gaston Hooks Jr.,Individually and Doing Business as Justice for All Document Preparation, Mediation andLawyer Referral Firm, Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Julie M. Sheridan of counsel), forrespondent.
Rose, J. Appeal from an order and judgment of the Supreme Court (Giardino, J.), enteredSeptember 10, 2004 in Schenectady County, which, in a proceeding pursuant to Executive Law§ 63 (12), granted petitioner's motion to hold respondent in civil and criminal contempt.
Respondent was the operator of a paralegal and document preparation business who, in aproceeding pursuant to Executive Law § 63 (12) and General Business Law § 349,was accused in 1999 of repeated deceptive and fraudulent practices. Following respondent'sdefault, Supreme Court (Caruso, J.) issued a judgment imposing substantial monetary penaltiesand permanently enjoining him from providing paralegal and document preparation and filingservices. In 2000, petitioner applied to have respondent held in contempt for violating thisinjunction. The parties ultimately stipulated to a court order in 2001 that found respondent guiltyof civil contempt, [*2]sentenced him to 60 days in jail, continuedthe terms of the earlier injunction and added the provision that respondent was prohibited fromengaging in a similar business "in any capacity whatsoever." Soon thereafter, petitioner beganreceiving further consumer complaints about respondent's deceptive and fraudulent practices in asimilar business, and ultimately applied in 2004 to have him again held in contempt. In anaffidavit opposing that application, respondent alleged that he had ceased doing paralegal anddocument preparation work, and denied accepting a fee from, or providing such advice to,consumers. He did acknowledge, however, that he worked as an "informational receptionist,"notary and process server for such a business now operated by his daughter. Without conductinga hearing, Supreme Court (Giardino, J.) found respondent to be in both civil and criminalcontempt, and imposed fines totaling $40,000 based upon the number of consumers harmed bythe practices of the business.
Respondent appeals, contending that he is entitled to a hearing. We disagree, however, as ahearing is required only where the alleged contemnor raises a question of material fact bysubmitting evidence directly contradicting the allegations of the contempt application (see Matter of Brown v Mudry, 55AD3d 828, 829 [2008]; Snyder vSnyder, 39 AD3d 1281, 1282 [2007]; Cashman v Rosenthal, 261 AD2d 287,287 [1999]; Bowie v Bowie, 182 AD2d 1049, 1050 [1992]; Matter of Spinnenweberv New York State Dept. of Envtl. Conservation, 160 AD2d 1138, 1140 [1990]; compareIngraham v Maurer, 39 AD2d 258, 260 [1972]). Here, although respondent did deny some ofpetitioner's allegations, he admitted that he had been enjoined from engaging in the paralegal anddocument preparation business "in any capacity whatsoever" and did not deny that, at the timesin question, he was working for such a business. Based on those undisputed facts, SupremeCourt's summary adjudication was proper (see Sassower v Sheriff of WestchesterCounty, 824 F2d 184, 189-190 [2d Cir 1987]; Matter of Garbitelli v Broyles, 257AD2d 621, 622 [1999]; Bowie v Bowie, 182 AD2d at 1050-1051).
Similarly unavailing is respondent's further contention that petitioner did not establish hiswillful violation of the injunctions against him. The record reveals that, despite the clearmandates of Supreme Court (see McCain v Dinkins, 84 NY2d 216, 226 [1994]; Beneke v Town of Santa Clara, 61AD3d 1079, 1080-1081 [2009]), respondent repeatedly violated them and now seeks toavoid the consequences of his actions by merely disavowing that he personally counseled orreceived fees from the complaining consumers. We cannot view his admitted actions as otherthan willful and as supporting the findings of criminal as well as civil contempt beyond areasonable doubt (see Soho Alliance v World Farm, 300 AD2d 22, 22 [2002];Ferraro v Ferraro, 272 AD2d 510, 512 [2000]; Bayamon Steel Processors v Platt,191 AD2d 249, 249 [1993]).
Finally, we find no error in Supreme Court's imposition of the maximum fine under JudiciaryLaw § 751 (4). Penalties for criminal contempt are punitive—designed to deter thecontemnor where, as here, the court's mandate alone has proven ineffective (see State of NewYork v Unique Ideas, 44 NY2d 345, 349 [1978]; see generally Matter of Rubackin v Rubackin, 62 AD3d 11, 16-19[2009]). While respondent denies personally receiving any money from the eight consumerswhose complaints prompted these contempt proceedings, he does not deny that they each paidsubstantial fees to the business for which he worked and were deceived and defrauded by hisemployer. Thus, the record provides sufficient evidence supporting Supreme Court's exercise ofits statutory discretion in computing the amount of the fine needed to accomplish the goal ofdeterrence (see Labanowski vLabanowski, 4 AD3d 690, 696 [2004]).
Cardona, P.J., Spain, Kane and Garry, JJ., concur. Ordered that the order and judgment isaffirmed, without costs.