| Levy v Morgan |
| 2012 NY Slip Op 01170 [92 AD3d 1118] |
| February 16, 2012 |
| Appellate Division, Third Department |
| Norman Levy, Respondent-Appellant, v William Morgan,Appellant-Respondent. |
—[*1] Poklemba & Hobbs, L.L.C., Malta (Gary C. Hobbs of counsel), forrespondent-appellant.
Mercure, A.P.J. Cross appeals from an order of the Supreme Court (Krogmann, J.), enteredSeptember 15, 2010 in Warren County, upon a decision of the court partially in favor of plaintiff.
The underlying facts are also set forth in our prior decision in this action, in which weaffirmed Supreme Court's denial of the parties' motions for summary judgment (Levy v Morgan, 31 AD3d 857[2006]). Plaintiff possesses real property that is located across State Route 9N from a parcelowned by defendant on the west shore of Lake George in Warren County. Plaintiff also possessesdeeded easements granting him a right-of-way for ingress and egress across the northerly portionof defendant's property (hereinafter the northerly right-of-way), and mooring and docking rightsadjacent to the northerly boundary line of defendant's parcel. Plaintiff further claims that,beginning in 1992, he used defendant's former driveway—which extended from StateRoute 9N along the southerly boundary of defendant's property, then around defendant'sboathouse, and across defendant's parcel (hereinafter the southerly right-of-way)—toaccess his dock area. That same year, plaintiff built a concrete bulkhead and steps, and installed ametal cantilevered dock on the northern boundary of defendant's property. The dock wasconstructed such that it could be lifted out of the lake at the end of each boating season.[*2]
Defendant concedes that, in December 2002, he removedand destroyed plaintiff's dock because, he maintains, the dock exceeded the scope of the deededeasement. Shortly thereafter, defendant also began construction of a residence on his propertythat encroached on the northerly right-of-way. In response, plaintiff commenced this action, andsought temporary and permanent injunctions enjoining defendant from interfering with his use ofthe northerly right-of-way, as well as his mooring and docking rights. Following a hearing,Supreme Court (Moynihan, J.) issued an order in May 2003 authorizing plaintiff to reconstructthe dock at defendant's expense and enjoining defendant from impeding plaintiff's access, useand enjoyment of the southerly right-of-way for the purpose of reconstructing thedock.[FN1] The order further prohibited defendant from impeding in any way plaintiff's use, possession andenjoyment of his dock and docking and mooring rights.
Defendant does not dispute that he subsequently told plaintiff that "[h]e didn't care what thejudge said. Under no circumstances would that dock go back in . . . [Plaintiff]would never use the southerly or northerly right-of-way to access [his] dock to drive there."Defendant subsequently placed fill, debris and construction equipment on the northerly and thesoutherly rights-of-way.[FN2] Plaintiff moved to hold defendant in contempt in July 2003 and, following a hearing, the partiesstipulated to a two-week adjournment during which defendant would reconstruct the dock at hisexpense. After defendant refused to construct the dock on the basis that he was being asked toinstall an "illegal and unpermitted dock," plaintiff contracted to have the concrete steps and dockreplaced. When plaintiff provided defendant with notice of the construction schedule, defendantplaced several dump trucks full of debris and dirt on the southerly right-of-way, requiringplaintiff's contractor to obtain the assistance of three additional men to hand carry the completeddock frames over the piled dirt and debris.
Upon completion of the dock, plaintiff submitted a bill for approximately $35,000 todefendant, who refused to pay. The parties then cross-moved for, among other things, summaryjudgment. Supreme Court (Krogmann, J.) ordered a hearing to determine the reasonable cost ofthe dock reconstruction and otherwise denied the motions, and this Court affirmed (Levy vMorgan, 31 AD3d at 858-859). In September 2008, Supreme Court granted plaintiff atemporary injunction enjoining defendant from preventing plaintiff's use of the southerlyright-of-way, and the action proceeded to a bench trial on three issues.
Specifically, the issues certified for trial were (1) whether plaintiff's use of thedock—prior to its removal by defendant—satisfied the prescriptive period, (2) acontinuation of the 2003 contempt hearing upon defendant's alleged violation of the May 2003order, and (3) the reasonable cost of the dock reconstruction. Supreme Court concluded that the10-year prescriptive period had been satisfied before defendant removed plaintiff's dock in 2002and, thus, the issue of whether the cantilevered dock exceeded the permitted scope of the deeded[*3]easement, which granted plaintiff the right to construct atemporary floating or pole dock, is moot. The court held that plaintiff was entitled to a judgmentin the amount of $35,584.50 plus interest at a rate of 5%. Although the court also found thatdefendant had "blocked, obstructed and otherwise impeded plaintiff's possession, use andenjoyment of his dock or docking and mooring rights," the court declined to find defendant incontempt of the May 2003 order.[FN3] The parties now cross-appeal.[FN4]
Initially, we reject defendant's argument that Supreme Court erred in concluding that theprescriptive time period had been satisfied. To establish his adverse possession claim at the timethis action was commenced, plaintiff was required to demonstrate that his possession of the dockwas " '(1) hostile and under a claim of right; (2) actual; (3) open and notorious; (4) exclusive; and(5) continuous for the required [10 year] period' " (Hodges v Beattie, 68 AD3d 1597, 1598 [2009], quoting Walling v Przybylo, 7 NY3d 228,232 [2006]; see Ziegler v Serrano,74 AD3d 1610, 1611-1612 [2010], lv denied 15 NY3d 714 [2010]). Given thetestimony at trial regarding plaintiff's construction of the dock in the summer of 1992 anddefendant's admission that he removed the dock in December 2002, and according due deferenceto Supreme Court's credibility determinations, the court properly found that plaintiff establishedhis use of the dock for the required 10-year period. Similarly, the record supports the court'sdetermination that the reasonable cost of reconstruction was $35,584.50.
We agree with plaintiff, however, that Supreme Court erred in declining to hold defendant incontempt. A finding of civil contempt is warranted when "a lawful judicial order expressing anunequivocal mandate [was] in effect and disobeyed," thereby prejudicing the rights of a party,and "the party to be held in contempt . . . had knowledge of the order, although it isnot necessary that the order actually have been served upon [that] party" (McCain vDinkins, 84 NY2d 216, 226 [1994]; see Judiciary Law § 753 [A]; Matter ofMcCormick v Axelrod, 59 NY2d 574, 583 [1983]). There is no dispute that the May 2003order was served on defendant and remained in effect. As noted above, that order enjoineddefendant "from blocking, obstructing, . . . or otherwise impeding plaintiff's use,possession and enjoyment of plaintiff's dock, docking and mooring rights"—the veryconduct that Supreme Court found defendant to have committed. In short, defendant disobeyedthe express dictates of the May 2003 order, thus impeding plaintiff's use and enjoyment of hisdock, docking and mooring rights. Accordingly, plaintiff's motion to hold defendant in civilcontempt must be granted and the matter remitted for a determination regarding the appropriatesanction to be applied (see Hamilton vMurphy, 79 AD3d 1210, 1213-1214 [2010], lv dismissed 16 NY3d 794 [2011];Beneke v Town of Santa Clara, 61AD3d 1079, 1081 [2009]). We strongly encourage Supreme Court to proceed without delaygiven the lengthy history of the parties' dispute.
Finally, in light of the circumstances of this case, plaintiff is correct that the proper [*4]interest rate to be applied to his award of the cost of reconstructionis the statutory rate of nine percent (see CPLR 5004). We have considered defendant'sremaining argument and conclude that it is lacking in merit (see Campanella vCampanella, 152 AD2d 190, 192-194 [1989]).
Spain, Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the order is modified, on thelaw, with costs to plaintiff, by reversing so much thereof as imposed a five percent interest rateupon plaintiff's award and denied plaintiff's motion for a finding of contempt; a nine percentinterest rate is imposed, motion to hold defendant in contempt granted, and matter remitted to theSupreme Court for further proceedings not inconsistent with this Court's decision; and, as somodified, affirmed.
Footnote 1: Supreme Court indicated thatnothing in its order affected plaintiff's rights to his deeded easement along the northerlyright-of-way, but concluded that plaintiff failed to demonstrate a prescriptive easement over thesoutherly right-of-way for purposes of obtaining a permanent injunction.
Footnote 2: In addition, the slope and size ofthe northerly right-of-way renders it impassable.
Footnote 3: In addition, Supreme Courtconcluded that defendant should not be found in contempt of its September 2008 order grantingplaintiff a temporary injunction and enjoining defendant from preventing plaintiff's use of thesoutherly right-of-way.
Footnote 4: Contrary to plaintiff's argument,defendant timely perfected his cross appeal in accordance with this Court's rules of practice(see 22 NYCRR 800.9 [e]) and express instructions.