| Astrada v Archer |
| 2010 NY Slip Op 02078 [71 AD3d 803] |
| March 16, 2010 |
| Appellate Division, Second Department |
| Faith Astrada, Respondent, v Hulbert Archer, Defendant,and Regina Felton, Appellant. |
—[*1] James T. Gerardi, P.C., East Northport, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of a contract for the sale of realproperty, the defendant Regina Felton appeals (1), as limited by her brief, from so much of anorder of the Supreme Court, Kings County (Schack, J.), dated February 1, 2008, as directed ahearing to aid in the disposition of those branches of the plaintiff's motion which were (a) to holdher in contempt of court for failure to comply with a prior order of the same court dated February14, 2007, directing her to return the plaintiff's down payment and pay statutory interest to theplaintiff, and (b) for an award of costs, including an attorney's fee, pursuant to 22 NYCRR130-1.1, (2) from an order of the same court dated March 28, 2008, which, after the hearing, ineffect, granted that branch of the plaintiff's motion which was to hold her in contempt of courtfor failure to comply with a prior order of the same court dated February 14, 2007, directing herto return the plaintiff's down payment and pay statutory interest to the plaintiff, and directed herincarceration in the event she failed to do so within 10 days of March 28, 2008, (3) from an orderof the same court dated August 7, 2008, which, after a hearing, in effect, granted that branch ofthe plaintiff's motion which was for an award of costs, including an attorney's fee, pursuant to 22NYCRR 130-1.1 and directed her to pay costs to the plaintiff in the principal sum of $40,600.50and to pay a sanction to the Lawyers' Fund for Client Protection in the sum of $10,000, (4) froma money judgment of the same court dated October 2, 2008, which is in favor of the plaintiff andagainst her in the principal sum of $40,600.50, and (5) from an order of the same court datedNovember 21, 2008, which, sua sponte, directed a hearing to determine whether she should beheld in criminal contempt for violating the order dated August 7, 2008, by failing to pay asanction to the Lawyers' Fund for Client Protection in the sum of $10,000.
Ordered that the appeals from the orders dated February 1, 2008, and November 21, 2008,are dismissed; and it is further,
Ordered that the appeal from so much of the order dated August 7, 2008, as, after a hearing,in effect, granted that branch of the plaintiff's motion which was for an award of costs, includingan attorney's fee, pursuant to 22 NYCRR 130-1.1 and directed the defendant Regina Felton topay costs to the plaintiff in the principal sum of $40,600.50 is dismissed; and it is further,[*2]
Ordered that the order dated March 28, 2008, is affirmed;and it is further,
Ordered that the order dated August 7, 2008, is affirmed insofar as reviewed; and it isfurther,
Ordered that the money judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeals from the orders dated February 1, 2008, and November 21, 2008, must bedismissed. An order which directs a judicial hearing to aid in the disposition of a motion is notappealable as of right because it does not decide the motion, and does not affect a substantialright (see Akerman v Akerman, 53AD3d 633 [2008]; D'Agnese v Spinelli, 308 AD2d 561, 562 [2003]; Aw vAw, 305 AD2d 344, 345 [2003]), and leave to appeal has not been granted. Further, anyappeal from the order dated November 21, 2008, would be academic, as that order was vacatedby an order of the same court dated December 5, 2008 (see Canarelli v Canarelli, 58 AD3d 658, 658-659 [2009]).
The appeal from so much of the order dated August 7, 2008, as, after a hearing, in effect,granted that branch of the plaintiff's motion which was for an award of costs, including anattorney's fee, pursuant to 22 NYCRR 130-1.1 and directed the defendant Regina Felton to paycosts to the plaintiff in the principal sum of $40,600.50 must be dismissed, as that portion of theorder was superseded by the money judgment dated October 2, 2008 (see Matter of Aho,39 NY2d 241 [1976]). The issues raised on the appeal from that portion of the order have beenconsidered on the appeal from the money judgment (see CPLR 5501 [a] [1]).
In February 2005 the plaintiff and the defendant Hulbert Archer entered into a contract forthe plaintiff's purchase of real property owned by Archer. In April 2005 the plaintiff tendered adown payment check in the amount of $30,000 to Archer's attorney, the defendant ReginaFelton, to be held by Felton in escrow until closing occurred or the contract was terminated. Byletter dated October 28, 2005, the plaintiff's attorney notified Felton that Archer had breached hisobligations under the terms of the contract and demanded the return of the plaintiff's downpayment. Felton did not return the down payment at that time.
In November 2005 the plaintiff commenced this action against Archer and Felton, inter alia,to recover damages for breach of contract. The plaintiff subsequently moved, among otherthings, for summary judgment on her cause of action alleging breach of contract. In an orderdated December 21, 2006, the Supreme Court, inter alia, granted that branch of the plaintiff'smotion and directed Felton to return the plaintiff's down payment and pay statutory interest tothe plaintiff within 10 days after being served with notice of entry of the order.
Felton failed to return the down payment or pay statutory interest to the plaintiff. In an orderdated February 14, 2007, the Supreme Court, inter alia, directed Felton to return the plaintiff'sdown payment and pay statutory interest to the plaintiff within 14 days after being served withnotice of entry of that order or face a finding of civil contempt.
Felton and Archer appealed from portions of the orders dated December 21, 2006, andFebruary 14, 2007. However, in April 2007, the guardian for the management of Archer'sproperty withdrew the appeals insofar as asserted on Archer's behalf. In an order dated May 27,2008, this Court affirmed the orders dated December 21, 2006, and February 14, 2007, insofar asappealed from by Felton (see Astrada vArcher, 51 AD3d 954 [2008]).
In November 2007, the plaintiff moved, inter alia, to hold Felton in contempt of court forfailure to comply with the order dated February 14, 2007, and for an award of costs, including anattorney's fee, pursuant to 22 NYCRR 130-1.1. At a hearing held on March 28, 2008, to addressthose branches of the plaintiff's motion, Felton acknowledged that she had still not returned theplaintiff's down payment or paid statutory interest to the plaintiff. In an order dated March 28,2008, the Supreme Court, in effect, granted that branch of the plaintiff's motion which was tohold Felton [*3]in civil contempt of court for failure to complywith the order dated February 14, 2007, and directed Felton's incarceration in the event she failedto return the plaintiff's down payment and pay statutory interest to the plaintiff within 10 days ofMarch 28, 2008. On April 18, 2008, Felton purged her contempt by returning the plaintiff's downpayment and paying statutory interest to the plaintiff.
In an order dated August 7, 2008, the Supreme Court, in effect, granted that branch of theplaintiff's motion which was for an award of costs, including an attorney's fee, pursuant to 22NYCRR 130-1.1 and directed Felton to pay costs to the plaintiff in the principal sum of$40,600.50 and to pay a sanction to the Lawyers' Fund for Client Protection in the amount of$10,000. The Supreme Court subsequently entered a judgment dated October 2, 2008, which isin favor of the plaintiff and against Felton in the principal sum of $40,600.50.
Contrary to Felton's contention, the Supreme Court properly granted that branch of theplaintiff's motion which was to hold her in contempt of court based upon her failure to complywith the order dated February 14, 2007. In order to prevail on a motion to punish a party for civilcontempt, the movant must demonstrate that the party charged violated a clear and unequivocalcourt order, thereby prejudicing a right of another party to the litigation (see JudiciaryLaw § 753 [A] [3]; OrangeCounty-Poughkeepsie Ltd. Partnership v Bonte, 37 AD3d 684, 686 [2007];Goldsmith v Goldsmith, 261 AD2d 576, 577 [1999]). To satisfy the prejudice element, itis sufficient to allege and prove that the contemnor's actions were calculated to or actually diddefeat, impair, impede, or prejudice the rights or remedies of a party (see OrangeCounty-Poughkeepsie Ltd. Partnership v Bonte, 37 AD3d at 686; Yeshiva Tifferes Torahv Kesher Intl. Trading Corp., 246 AD2d 538 [1998]).
Here, the plaintiff established that, as of March 28, 2008, Felton had violated the order datedFebruary 14, 2007, by failing to return her down payment and pay her statutory interest, and thatsuch conduct had prejudiced her rights (see Judiciary Law § 753 [A] [3]).Moreover, Felton failed to substantiate her claim that her refusal to comply with that order wasjustified. A party is obligated to comply with a court order, however incorrect the party mayconsider that order to be, until that order is set aside, either by appeal or otherwise, as long as thecourt issuing the order had jurisdiction to issue it (see Gloveman Realty Corp. v Jefferys, 29 AD3d 858, 858-859[2006]; Busters Cleaning Corp. v Frati, 203 AD2d 409, 409-410 [1994]). Here, therecord does not support Felton's contention that the Supreme Court was without jurisdiction toorder her to return the plaintiff's down payment and pay statutory interest to the plaintiff in theorder dated February 14, 2007, which was issued upon her failure to comply with the order datedDecember 21, 2006.
Additionally, the Supreme Court properly granted that branch of the plaintiff's motion whichwas for an award of costs, including an attorney's fee, pursuant to 22 NYCRR 130-1.1, andproperly directed Felton to pay costs to the plaintiff and a sanction to the Lawyers' Fund forClient Protection. Conduct is frivolous and can result in an award of costs or the imposition ofsanctions under 22 NYCRR 130-1.1 if it is "completely without merit in law and cannot besupported by a reasonable argument for an extension, modification or reversal of existing law" orit is "undertaken primarily to delay or prolong the resolution of the litigation, or to harass ormaliciously injure another" (22 NYCRR 130-1.1 [c] [1], [2]; see Glenn v Annunziata, 53 AD3d 565, 566 [2008]; Ofman v Campos, 12 AD3d 581,582 [2004]). "In making that determination, the court must consider 'the circumstances underwhich the conduct took place' and 'whether or not the conduct was continued when its lack oflegal or factual basis was apparent [or] should have been apparent' " (Glenn vAnnunziata, 53 AD3d at 566, quoting 22 NYCRR 130-1.1 [c]). Here, among other things,Felton's conduct in refusing to return the plaintiff's down payment and pay statutory interest tothe plaintiff for more than a year after being directed to do so in the order dated December 21,2006, was completely without merit in law (see 22 NYCRR 130-1.1 [c] [1]). Fisher, J.P.,Angiolillo, Lott and Sgroi, JJ., concur.