| Chambers v Old Stone Hill Rd. Assoc. |
| 2009 NY Slip Op 07786 [66 AD3d 944] |
| October 27, 2009 |
| Appellate Division, Second Department |
| John Chambers et al. Plaintiffs, and Peter Leidel et al.,Appellants, v Old Stone Hill Road Associates et al.,Respondents. |
—[*1] Michael F. X. Ryan, Croton-on-Hudson, N.Y., for respondent Old Stone Hill RoadAssociates, and Snyder & Snyder LLP, Tarrytown, N.Y. (Leslie J. Snyder and Keith R. Betenskyof counsel), for respondent New York SMSA Limited Partnership, doing business as VerizonWireless (one brief filed).
In an action, inter alia, to enforce restrictive covenants in a deed, the plaintiffs Peter Leideland Pamela Leidel appeal from an order of the Supreme Court, Westchester County (Nicolai, J.),entered April 2, 2008, which denied those branches of their motions which were to hold thedefendants in civil contempt for their failure to comply with a provision in an order andjudgment (one paper) of the same court (Cowhey, J.), entered November 19, 2001, directingthem to remove a wireless telecommunications service facility from the encumbered property.
Ordered that the order entered April 2, 2008, is affirmed, with costs.
In an order and judgment entered November 19, 2001 (hereinafter the 2001 order), thedefendants Old Stone Hill Road Associates (hereinafter Stone Hill) and New York SMSALimited Partnership, doing business as Verizon Wireless (hereinafter Verizon), were directed toremove a telecommunications service facility that violated a restrictive covenant in a deed(hereinafter the original facility). The 2001 order did not set forth a specific timeline or date forthe removal of the original facility. In a stipulation dated December 10, 2001, the plaintiffs JohnChambers and Marsha Chambers (hereinafter together the Chambers plaintiffs), Peter Leidel andPamela Leidel (hereinafter together the Leidel plaintiffs), and Alan Sorkin and Pamela Sorkin(hereinafter together the Sorkin plaintiffs) agreed to a stay of enforcement of the 2001 orderpending determination of the defendants' appeal therefrom. This Court's decision and order datedMarch 17, 2003, affirming the 2001 order insofar as appealed from, was subsequently affirmedby the Court of Appeals on February 24, 2004 (see Chambers v Old Stone Hill Rd.Assoc., 303 AD2d 536 [2003], affd 1 NY3d 424 [2004]). The Court of Appealsnoted that the Town of Pound Ridge, as amicus curiae, "urges that it would need time to relocatethe antenna without interruption of service vital to public health and safety. Plaintiffs haveconsented to 'a reasonable time period' for relocation" (Chambers v Old Stone Hill Rd.Assoc., 1 NY3d at 435).
Approximately one month after the Court of Appeals rendered its decision, Verizon [*2]applied for a permit to build a replacement facility on twoalternative sites. Thereafter, the Town conducted numerous hearings and reviewed more than150 documents before issuing a building permit to construct a replacement facility on one of thetwo sites on May 25, 2006. The construction of the replacement facility began in July 2006 andwas completed one year later. A permit to demolish the original facility was granted on June 29,2007, and demolition was completed on July 5, 2007.
Meanwhile, the Sorkin plaintiffs sold their house in 2002, and the Chambers plaintiffs settledthe action pursuant to a stipulation that was so-ordered by the Supreme Court on December 1,2005. In May and November 2007, the Leidel plaintiffs, the only remaining plaintiffs, made twoseparate motions, among other things, to hold both defendants in contempt and for an award ofdamages, on the ground that the defendants had failed to comply with the 2001 order. TheSupreme Court denied those branches of the Leidel plaintiffs' motions which were to hold bothdefendants in civil contempt. The Leidel plaintiffs appeal.
A motion to punish a party for civil contempt is addressed to the sound discretion of themotion court (see Educational Reading Aids Corp. v Young, 175 AD2d 152 [1991]).Moreover, the movant bears the burden of proof (see Vujovic v Vujovic, 16 AD3d 490 [2005]; Rupp-Elmasri vElmasri, 305 AD2d 394 [2003]). To prevail, the movant must demonstrate that "the partycharged violated a clear and unequivocal court order, thereby prejudicing a right of another partyto the litigation" (Goldsmith v Goldsmith, 261 AD2d 576, 577 [1999]; seeJudiciary Law § 753 [A] [3]; Matter of McCormick v Axelrod, 59 NY2d 574, 584[1983]; City of Poughkeepsie v Hetey, 121 AD2d 496 [1986]; Oppenheimer v OscarShoes, 111 AD2d 28 [1985]). The contempt must be proven by clear and convincingevidence (see Rienzi v Rienzi, 23AD3d 447, 449 [2005]; Vujovic v Vujovic, 16 AD3d at 491; Goldsmith vGoldsmith, 261 AD2d at 577).
The Leidel plaintiffs did not meet their burden. First, the 2001 order did not express a clearand unequivocal mandate to remove the original facility immediately or by a specific deadline(see Rienzi v Rienzi, 23 AD3d at 449; Vujovic v Vujovic, 16 AD3d at 491).Second, the Leidel plaintiffs failed to establish, with reasonable certainty, that the defendantsdisobeyed the 2001 order (see Frew v Dime Sav. Bank of N.Y., 251 AD2d 622 [1998]).Indeed, the record supports the contrary conclusion that Verizon proceeded diligently and ingood faith to obtain a building permit to construct the replacement facility and dismantle theoriginal facility. The Leidel plaintiffs' failure to establish that they suffered any injury orcompensable damages also warranted denial of their motions (see Matter of Department ofEnvtl. Protection of City of N.Y. v Department of Envtl. Conservation of State of N.Y., 70NY2d 233, 240 [1987]; Matter of Augat v Hart, 244 AD2d 800, 802 [1997]).
The parties' remaining contentions are without merit. Skelos, J.P., Santucci, Belen and Hall,JJ., concur.