| Town of Huntington v Reuschenberg |
| 2010 NY Slip Op 00954 [70 AD3d 814] |
| February 9, 2010 |
| Appellate Division, Second Department |
| Town of Huntington, Appellant, v ChanningReuschenberg et al., Respondents. |
—[*1] Vincent J. Trimarco, Smithtown, N.Y. (Clare B. Connaughton of counsel), forrespondents.
In an action, inter alia, to permanently enjoin the defendants from violating variousprovisions of the Town Code of the Town of Huntington in connection with their use of certainreal property identified as district 400, section 128, block 5, lot 4, on the Suffolk County tax mapand directing them to restore and remediate certain portions of the real property to its priornatural state, the plaintiff appeals, as limited by its brief, from so much of an order of theSupreme Court, Suffolk County (Cohalan, J.), dated September 23, 2008, as denied its motion tohold the defendants in contempt for violating two prior temporary restraining orders of the samecourt (Molia, J.; Cohalan, J.), dated March 6, 2007, and January 9, 2008, respectively, and thosebranches of its separate motion which were for a preliminary injunction, inter alia, compellingthe defendants to remove all equipment, concrete product, and materials from areas on the realproperty designated as the disturbed area and woodland area, to maintain the disturbed area andwoodland area in a natural state during the pendency of this action, to secure and make safe thedisturbed area and woodland area, by, among other things, installing silt fencing and hay bales toprevent erosion, to maintain such structures during the pendency of this action, to require thedefendant to remove all debris and unregistered vehicles from the property, and to disassembleand remove a certain shed located on the real property.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthe plaintiff's motion to hold the defendants in contempt and substituting therefor a provisiongranting that motion, and (2) by deleting the provisions thereof denying those branches of theplaintiff's separate motion which were for a preliminary injunction compelling the defendants tosecure and make safe the disturbed area and woodland area by installing silt fencing to preventerosion, and to maintain such a structure during the pendency of this action, and substitutingtherefor a provision granting those branches of the separate motion; as so modified, the order isaffirmed insofar as appealed from, with costs to the plaintiff, and the matter is remitted to theSupreme Court, Suffolk County, for further proceedings consistent herewith.
To sustain a finding of civil contempt, a court must find that the alleged contemnor violateda lawful order of the court, clearly expressing an unequivocal mandate of which that party hadknowledge, and that, as a result of the violation, a right of a party to the litigation was prejudiced(see Judiciary Law § 753 [A] [3]; McCain v Dinkins, 84 NY2d 216, 226[1994]; Incorporated Vil. of Plandome[*2]Manor v Ioannou, 54 AD3d 365 [2008]). "[I]t is notnecessary that the disobedience be deliberate or willful; rather, the mere act of disobedience,regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes or prejudicesthe rights of a party" (Hinkson vDaughtry-Hinkson, 31 AD3d 608, 608 [2006] [internal quotation marks omitted]).
Here, the record reveals that the defendants were aware of the clear and unequivocalmandates contained in two temporary restraining orders previously issued by the Supreme Court,and violated them, and that such conduct defeated, impaired, impeded, or prejudiced theplaintiff's rights or remedies. The defendants failed to raise a factual issue warranting a hearing.Further, contrary to the defendants' contention, the temporary restraining orders had not expiredduring the period of their contemptuous conduct. Accordingly, under these circumstances, theSupreme Court should have granted the plaintiffs' motion to hold the defendants in civilcontempt (see e.g. Incorporated Vil. of Plandome Manor v Ioannou, 54 AD3d at 366).
To obtain preliminary injunctive relief based on a violation of its zoning ordinances, a townneed only show that it has a likelihood of success on the merits and that the equities are balancedin its favor (see Town of Riverhead vGezari, 63 AD3d 1042 [2009];Town of Riverhead v Silverman, 54 AD3d 1024 [2008]; Town Law § 268 [2]).Under the circumstances presented here, we agree with the plaintiff's contention that theSupreme Court erred in failing to grant that branch of its separate motion which was for apreliminary injunction compelling the defendants to secure and make safe the Disturbed Areaand Woodland Area of the subject property by installing silt fencing to prevent erosion, and tomaintain such a structure during the pendency of this action.
The plaintiff's remaining contentions are without merit. Covello, J.P., Santucci, Miller andEng, JJ., concur. [Prior Case History: 2008 NY Slip Op 33140(U).]