930 E. Parkway N.Y. Corp. v Rosenberg

[*1] 930 E. Parkway N.Y. Corp. v Rosenberg 2004 NY Slip Op 50617(U) Decided on June 14, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 14, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
NO. 2002-37 K C

930 EASTERN PARKWAY NEW YORK CORPORATION, Respondent,

against

SHIMON ROSENBERG, Appellant, -and- ADINA ROSENBERG and RACHEL RACHMAN, Tenants.

Appeal by tenant Shimon Rosenberg from an order of the Civil Court, Kings County (M. Sikowitz, J.), dated November 15, 2001, which directed him to pay landlord's attorney the sum of $1,000 by November 19, 2001, and from an order of said court, dated December 12, 2001, which, inter alia, held tenant Shimon Rosenberg in contempt for failing to make the payment and awarded landlord judgment in the sum of $2,157.50. The appeal from the dated order December

12, 2001 is deemed to be from a "nonpayment" final judgment entered pursuant thereto on the same date awarding landlord possession and the sum of $2,157.50.

Appeal from order dated November 15, 2001 unanimously dismissed.

Final judgment entered December 12, 2001 unanimously reversed without costs, orders dated November 15, 2001 and December 12, 2001 vacated, landlord's application to direct the payment of use and occupancy pendente lite denied as academic, and landlord's application to [*2]punish for contempt denied.

The appeal from the order dated November 15, 2001 must be dismissed because any right of direct appeal therefrom terminated with the entry of the contempt judgment, in which the order was subsumed (Matter of Aho, 39 NY2d 241 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the contempt judgment (CPLR 5501 [a] [1]).

In this holdover proceeding, upon a request by tenant Shimon Rosenberg (appellant) on November 15, 2001 for a third adjournment, the court, upon an oral application by landlord, ordered appellant to pay landlord's attorney the sum of $1,000 in use and occupancy by November 19, 2001 and adjourned the proceeding until December 11, 2001. When appellant failed to make the payment, the court accelerated the trial date of the holdover proceeding to November 28, 2001. In addition, on December 12, 2001, the court, after a hearing, granted a motion by landlord to punish appellant for contempt for failure to make the payment and entered a "nonpayment" final judgment awarding landlord possession and the sum of $2,157.50, representing the $1,000 in unpaid use and occupancy, $250 in fines pursuant to Judiciary Law § 773, and $907.50 in attorney's fees. (Despite the entry of this possessory judgment, the holdover proceeding continued and, after trial, landlord was awarded a holdover final judgment. The appeal from the holdover final judgment [No. 2002-375 K C] is decided herewith.) Upon appellant's application, this court stayed enforcement of the contempt order and "nonpayment" final judgment.

We vacate the order dated November 15, 2001 on the ground that RPAPL 745 (2) (a) allows the court to order payment of use and occupancy directly to the landlord only after inquiring "of the respondent as to whether there is any undisputed amount of the rent or use and occupancy due to the petitioner." Since it is clear from a review of the record that appellant was disputing the full amount of the rent and/or use and occupancy claimed, it was error for the court to direct payment directly to landlord's attorney. Because the application for use and occupancy pendente lite is now moot, the application is denied.

We also reverse the "nonpayment" final judgment, vacate the underlying order dated December 12, 2001, and deny landlord's motion to punish tenant for contempt for failing to make the court-ordered payment.

As noted above, the order directing appellant to pay $1,000 to landlord's attorney was not authorized under RPAPL 745 (2). Even were it so authorized, the remedy of contempt is not one of the remedies provided for in RPAPL 745 (2) (c). If, apart from RPAPL 745 (2), the direction was made as a condition of the granting of the adjournment, the failure to pay is not punishable by contempt (see Hodo v Serecchia, 102 AD2d 807 [1984]).

If the direction was neither a condition of the adjournment nor made pursuant to RPAPL 745 (2), the direction may well have been beyond the power of the court (CCA 209 [b]); North Waterside Redevelopment Co. v Febbraro, 256 AD2d 261, 262 [1998]; Hotel New Yorker Pharmacy v New Yorker Hotel Corp., 40 AD2d 967 [1972]; see Delta Airlines v Metropolitan Culinary Svcs., NYLJ, Jan. 2, 2004 [App Term, 2d & 11th Jud Dists]; Montague St. Realty Assocs. v Simpson, NYLJ, May 31, 1994 [App Term, 2d & 11th Jud Dists]; Weiner Realty Corp. [*3]v Douglas, NYLJ, Dec. 10, 1996 [App Term, 2d & 11th Jud Dists]; Atlantic Plaza Hous. Corp. v Burgess, NYLJ, May 18, 1978 [App Term, 2d & 11th Jud Dists]; Sutton Shopping Ctr. v Robbins MBW Corp., NYLJ, June 8, 1992 [Civ Ct, Kings County]; but see Steele v Acevedo, NYLJ, Mar. 28, 2002 [App Term, 1st Dept]; Drewvin Bldg Co. v Busoni, NYLJ, July 7, 1999 [App Term, 1st Dept]; 300 E. 34th St. Co. v Paleis, NYLJ, June 20, 1998 [App Term, 1st Dept]). A violation of an order which is void for lack of jurisdiction is not punishable by contempt (Matter of Schulz v State of New York, 86 NY2d 225, 232 [1995]; see Farchester Gardens v Licini, NYLJ, Mar. 18, 1999 [App Term, 9th & 10th Jud Dists]; Ford v Tower W. Assocs., 120 Misc 2d 240 [App Term, 1st Dept 1983]). In any event, even if the order was within the power of the court to make, a direction to pay money, which is enforceable by execution, does not support a contempt (Judiciary Law § 753 [A] [3]; see 4509 New Utrecht Ave. Corp. v Pita Parlor, 143 AD2d 171 [1988]; Calvert v Le Tam Realty Corp., 118 AD2d 426 [1986]).
Decision Date: June 14, 2004