| Vider v Vider |
| 2011 NY Slip Op 05262 [85 AD3d 906] |
| June 14, 2011 |
| Appellate Division, Second Department |
| Sherrie Vider, Appellant, v Esther Vider, Respondent.Estate of Helen Wolf et al., Additional CounterclaimDefendants-Appellants. |
—[*1] Esther Vider, as executor of the estate of Sal Vider, Dix Hills, N.Y., respondent prose.
In an action to quiet title to real property, the plaintiff and the additional counterclaimdefendants appeal, as limited by their brief, from so much of a judgment of the Supreme Court,Suffolk County (Blydenburgh, J.), entered December 2, 2009, as, upon an order of the same courtdated October 29, 2009, made after a hearing, inter alia, granting that branch of the motion of thedefendant, Esther Vider, as executor of the estate of Sal Vider, which was pursuant to CPLR5104 to hold them in contempt of court, directed them to comply with the terms of a stipulationof settlement and to forfeit the sum of $35,000 being held in escrow to the defendant, EstherVider, as executor of the estate of Sal Vider, as a punishment for their contempt of court, andawarded the defendant, Esther Vider, as executor of the estate of Sal Vider, an attorney's fee inthe principal sum of $20,183.43.
Ordered that the judgment is modified, on the law, (1) by deleting the third decretalparagraph thereof awarding the defendant, Esther Vider, as executor of the estate of Sal Vider, anattorney's fee in the principal sum of $20,183.43, and substituting therefor a provision awardingthat defendant an attorney's fee in the principal sum of $19,211.75, and (2) by deleting the lastdecretal paragraph thereof directing that the $35,000 being held in escrow be forfeited by theplaintiff and the additional counterclaim defendants to the defendant, Esther Vider, as executorof the estate of Sal Vider, as a punishment for their contempt of court and substituting therefor aprovision directing the plaintiff and the additional counterclaim defendants to pay a fine in thesum of $250 for contempt of court to the defendant, Esther Vider, as executor of the estate of SalVider; as so modified, the judgment is affirmed insofar as appealed from, with one bill of costsawarded to the defendant, Esther Vider, as executor of the estate of Sal Vider, payable by theplaintiff and the additional counterclaim defendants, and the order dated October 29, 2009, ismodified accordingly.
"In order to sustain a finding of civil contempt under Judiciary Law § 753 based on aviolation of a court order, it is necessary to establish by clear and convincing evidence that alawful court order clearly expressing an unequivocal mandate was in effect, that the personalleged to have violated the order had actual knowledge of its terms, and that the violation hasdefeated, impaired, impeded, or [*2]prejudiced the rights of aparty" (Manning v Manning, 82AD3d 1057, 1058 [2011]; see Judiciary Law § 753; Schwartz v Schwartz, 79 AD3d1006, 1009 [2010]; Miller vMiller, 61 AD3d 651, 652 [2009]). "A motion to punish a party for civil contempt isaddressed to the sound discretion of the motion court" (Chambers v Old Stone Hill Rd. Assoc., 66 AD3d 944, 946 [2009]).
Here, the record demonstrates, by clear and convincing evidence, that the plaintiff, SherrieVider, also known as Sherrie Lerner, and the additional counterclaim defendants, the estate ofHelen Wolf and the estate of Benjamin Wolf (hereinafter collectively Sherrie Vider and theestates), knowingly disobeyed an order of the Supreme Court dated October 24, 2006, directingthem to comply with a stipulation of settlement by executing deeds as reasonably required toconvey certain premises to the defendant, Esther Vider, as executor of the estate of Sal Vider(hereinafter Vider's estate). The portion of that order directing them to comply with thestipulation was affirmed by this Court (see Vider v Vider, 46 AD3d 673, 674 [2007]), but Sherrie Viderand the estates still failed to comply. Further, the failure to comply "defeated, impaired, impeded,or prejudiced the rights" of Vider's estate (Manning v Manning, 82 AD3d at 1058).Consequently, the Supreme Court properly found Sherrie Vider and the estates in civil contemptof court.
Pursuant to Judiciary Law § 753, a court punishing a party for contempt can impose afine or imprisonment, or both. " 'The Supreme Court exceeds its authority when it fashions aremedy not contemplated by the statute' " (Wel-Made Enters., Inc. v Mid Is. Redi-Mix, Inc., 81 AD3d 717,719 [2011], quoting Parker v TopHomes, Inc., 58 AD3d 817, 819 [2009]). Where no actual damages are shown, theamount of a fine for civil contempt cannot exceed $250 (see e.g. Matter of ChristopherC., 298 AD2d 389 [2002]). Here, the Supreme Court exceeded its authority by directing thatthe $35,000 which was being held in escrow to be paid to Sherrie Vider and the estates pendingconfirmation of, among other things, the filing of the deed and transfer of the property, was to bereturned to Vider's estate, "by reason of the willful, deliberate and blatant contempt" of SherrieVider and the estates. Further, there was no showing of actual damages. Accordingly, we findthat Sherrie Vider and the estates should instead be directed to pay a fine in the statutory amountof $250.
" 'Judiciary Law § 773 permits recovery of attorney's fees from the offending party bya party aggrieved by the contemptuous conduct' " (Schwartz v Schwartz, 79 AD3d at1010, quoting Children's Vil. v Greenburgh Eleven Teachers' Union Fedn. of Teachers, Local1532, AFT, AFL-CIO, 249 AD2d 435, 435 [1998]; see Judiciary Law § 773). "'[C]ounsel fees that are documented and directly related to contemptuous conduct are generallyrecoverable unless proven excessive or reduced in a court's reasoned decision' " (Bell v White, 77 AD3d 1241,1244 [2010], quoting Matter of Evans v Board of Assessment Review of Town ofCatskill, 300 AD2d 768, 768-769 [2002]). Here, most of the counsel fees sought weredirectly related to the contemptuous conduct. However, certain fees, pertaining to the substitutionof Esther Vider, as executor of the estate of Sal Vider, were not. Accordingly, we reduce the feeaward by the sum of $971.68, for a total principal sum of $19,211.75.
The remaining contentions of Sherrie Vider and the estates are without merit. Rivera, J.P.,Florio, Dickerson and Eng, JJ., concur.