| Town of Copake v 13 Lackawanna Props., LLC |
| 2010 NY Slip Op 04088 [73 AD3d 1308] |
| May 13, 2010 |
| Appellate Division, Third Department |
| Town of Copake, Respondent, v 13 LackawannaProperties, LLC, et al., Appellants. |
—[*1] Rapport, Meyers, Whitbeck, Shaw & Rodenhausen, L.L.P., Hudson (Victor M. Meyers ofcounsel), for respondent.
Mercure, J. Appeal from an order of the Supreme Court (Nichols, J.), entered June 12, 2009in Columbia County, which granted plaintiff's motions to hold defendants in civil and criminalcontempt.
Defendant Salvatore Cascino is the owner of defendant 13 Lackawanna Properties, LLC anddefendant Copake Valley Farm, LLC, the entities which, respectively, own and operate a310-acre farm located in the Town of Copake, Columbia County. Plaintiff alleges thatdefendants are primarily engaged in the business of hauling solid waste andtrash—including garbage, refuse and demolition debris—and that they dump thiswaste on the farm property. In a prior action, the parties entered into a stipulation of settlementproviding that defendants would use the farm property for agricultural purposes only, apply forand obtain permits from plaintiff prior to commencing any construction on the parcel, and restorecertain areas of the property as required by the Department of Environmental Conservation.Plaintiff commenced this action in 2006, seeking to enjoin defendants from violating its ZoningLaw and Solid Waste Law.
Upon plaintiff's motion, Supreme Court issued a temporary restraining order (hereinafterTRO) prohibiting "all further construction and/or excavation . . . [and the]depositing [of] any materials of any type upon the premises." The TRO was twice amended topermit defendants to engage in limited farming activities on 41 acres of the property withadvance notice [*2]to plaintiff, and to comply with a consentdecree issued in connection with a separate action commenced by the Department ofEnvironmental Conservation to compel wetlands restoration on the premises. Thereafter,plaintiff moved twice to hold defendants in civil and criminal contempt, alleging that defendantshad, among other things, proceeded with the construction of a farm stand and 10-foot high stonewall without a permit, and deposited fill material and wood pallets on the premises. SupremeCourt granted plaintiff's motions and imposed fines and a suspended sentence of incarceration. Inaddition, the court directed defendants to remove the stone wall and materials deposited on theproperty, and cease further construction of the farm stand. Defendants appeal, and we nowaffirm.
In order "[t]o sustain a finding of either civil or criminal contempt based on an allegedviolation of a court order[,] it is necessary to establish that a lawful order of the court clearlyexpressing an unequivocal mandate was in effect[,] . . . that the order has beendisobeyed" and that the charged party "had knowledge of the court's order" (Matter ofDepartment of Envtl. Protection of City of N.Y. v Department of Envtl. Conservation of State ofN.Y., 70 NY2d 233, 240 [1987]; see Matter of McCormick v Axelrod, 59 NY2d574, 583 [1983], amended 60 NY2d 652 [1983]). The same act may constitute bothcriminal and civil contempt; "the element which escalates a contempt to criminal status is thelevel of willfulness associated with the conduct" (McCain v Dinkins, 84 NY2d 216, 226[1994]; see Judiciary Law § 750 [A] [3]; Matter of McCormick v Axelrod,59 NY2d at 583). Moreover, criminal contempt must be proven beyond a reasonable doubt (see Matter of People v Hooks, 64AD3d 1075, 1077 [2009], lv dismissed 13 NY3d 815 [2009]). Civil contempt, incontrast, must be proven by clear and convincing evidence, and requires a showing that therights of a party have been prejudiced (see McCain v Dinkins, 84 NY2d at 226; JudiciaryLaw § 753 [A] [3]; AutomatedWaste Disposal, Inc. v Mid-Hudson Waste, Inc., 50 AD3d 1073, 1074 [2008]).
Here, contrary to defendants' arguments that the order was vague and ambiguous, the TROexpressed a clear and unequivocal mandate prohibiting "all further construction and/orexcavation . . . [and the] depositing [of] any materials of any type upon thepremises." Furthermore, plaintiff presented the testimony of several individuals and numerousphotographs demonstrating that defendants willfully and openly flouted the explicit directives ofthe TRO. While defendants assert that their activities came within the modifications of the TROpermitting farming and restoration of wetlands or were required by exigent circumstances,Supreme Court flatly rejected the testimony in this regard as lacking in veracity, and thatcredibility determination must be accorded deference (see Matter of Carol S. [Christine T.—Mary AA.], 68 AD3d1337, 1338 [2009]; Matter of Rebecca O. v Todd P., 309 AD2d 982, 984 [2003]). Inany event, plaintiff demonstrated that the work was beyond the scope of that permitted by themodifications. In our view, the evidence established beyond a reasonable doubt that defendantswillfully violated the TRO and caused prejudice to plaintiff by frustrating plaintiff's ability toenforce its public health and safety laws. Thus, Supreme Court did not abuse its discretion eitherin finding civil and criminal contempt or in the penalties imposed (see Matter of People vHooks, 64 AD3d at 1076-1077; Beneke v Town of Santa Clara, 61 AD3d 1079, 1080-1081 [2009];Matter of Spinnenweber v New York State Dept. of Envtl. Conservation, 160 AD2d1138, 1140 [1990]; Moran v Village of Philmont, 147 AD2d 230, 234-235 [1989], lvdismissed 74 NY2d 943 [1989]; cf.Aison v Hudson Riv. Black Riv. Regulating Dist., 54 AD3d 457, 458-459 [2008]).
Defendants' remaining arguments are either not properly before us or, upon [*3]consideration, have been found to be lacking in merit.
Cardona, P.J., Spain, Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed,without costs.