Cicero v Cicero

[*1] Cicero v Cicero 2009 NY Slip Op 51039(U) [23 Misc 3d 1131(A)] Decided on May 22, 2009 Supreme Court, Richmond County McMahon, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 22, 2009
Supreme Court, Richmond County

Nicholas Cicero, Jr., Glenn Cicero and Cicero Service Station Incorporated, Plaintiff(s),

against

Nicholas Cicero, Sr., Joan A. Cicero and 1650 Forest Avenue Corporation, Defendant(s).



102832/2008

Judith N. McMahon, J.

On April 21, 2009, this Court heard oral argument on plaintiffs' Order to Show Cause requesting defendant Nicholas Cicero, Sr., be held in contempt for his alleged failure to comply with a settlement stipulation entered into before this Court on November 12, 2008.

The following is a chronology of the credible facts as gleaned from the testimony and exhibits during the two day contempt hearing held on April 27, and April 29, 2009. This case involves an intra-familial dispute between plaintiffs who are the sons of defendants Nicholas Sr. and Joan Cicero. This case first presented to this court on or about September 30, 2008, wherein a preliminary conference was held. It was brought by the plaintiffs seeking the imposition of a constructive trust on 1650 Forest Avenue Corporation, the location of the family owned gasoline station/repair shop. The service station came into existence in the early 1970's. This family run business was managed harmoniously for the better part of twenty years. The family worked together to further the success of the business and no rent was ever exchanged between the parties. Nicholas Cicero Sr. and Joan Cicero assisted in maintaining the records/books of the business while Glenn Cicero was the full time employee and Nicholas Cicero Jr., worked on his off days from his job as a New York City Firefighter. Sadly, the "loving family" atmosphere that once existed has dissipated.

The crux of this instant action actually accrued as a result of a decade long litigation in Federal Court wherein Nicholas Cicero, Sr., by Cicero Service Center, commenced an action against Sunoco. At that time, the Service Center was under contract to exclusively sell Sunoco gasoline. When a gasoline spill occurred on the station's property, the Service Center commenced a lawsuit seeking remediation. During the lengthy course of the federal litigation, Cicero Service Center went through multiple attorneys as a result of disagreements with Nicholas Cicero Sr. on the appropriate strategy and settlement terms. Ultimately, everyone involved in the litigation, including Nicholas Cicero Jr., Glenn Cicero, Nicholas Cicero Sr., the federal Judge presiding over the case, and the attorney for Cicero Service Center agreed, on the record, that Nicholas Cicero Sr. would remove himself from the case and the attorney would continue with Nicholas Jr. and Glenn in an attempt to resolve the matter. Thereafter, a stipulation of settlement was entered into by all parties whereby Sunoco would provide one hundred percent (100%) of the remediation costs and further, Sunoco would reimburse the money that Cicero Service Center [*2]had paid in an effort to hasten the remediation process.

Immediately after the settlement was entered into Nicholas Cicero Sr. noted his objections to his sons and attempted to reopen the federal litigation. Much to his dismay, the federal litigation was never reopened. However, Nicholas Cicero Sr. appealed to the Second Circuit Court of Appeals and is now seeking certiorari to the United States Supreme Court, all as a pro se litigant. In addition, Nicholas Cicero Sr. commenced another lawsuit in small claims court over the gallons of gas that were lost during the spill. He received a credit in the amount of gasoline lost in the spill. Mr. Cicero Sr. also commenced a commercial landlord and tenant action in Richmond County Civil Court, in an attempt to evict Nicholas Jr. and Glenn Cicero. That action was stayed pending the determination of this action. He has also commenced other matters in Richmond County Civil Court that he referenced during the course of the hearing and has represented himself throughout all of the litigation.

In accordance with the federal lawsuit's settlement stipulation, Nicholas Jr. and Glenn Cicero procured permits, under Nicholas Cicero, Jr.'s name, to begin remediation and installation of new pumps which were provided by Sunoco. In an effort to accelerate the entire process, the remediation contractors and the pump installation contractors agreed to work together to avoid having to perform duplicative work. The work began on Cicero Service Center over one year ago whereby Sunoco was attempting to install wells, new pumps and begin remediation. However, soon thereafter Nicholas Cicero, Sr. went to the New York City Buildings Department and obtained a stop work order. This triggered an audit whereby it was determined that Nicholas Cicero Sr. was the one listed as owner on the deed and therefore the only signature that the NYC Buildings Department would accept on the permits. He has since that time refused to sign the appropriate building permits in order for the station to begin pumping gas again.

At that juncture, the case came before this court. After the preliminary conference was held, the court set a settlement date, whereby all parties were to be present in an attempt to resolve this family dispute. On November 12, 2008, the settlement conference was held, on the record, and the case was settled. All parties agreed, again on the record, that Nicholas Cicero, Sr. would sign all the permits necessary to allow the remediation and installation of the new pumps, in accordance with the federal settlement, to be effectuated. Further, it was agreed that Nicholas Cicero, Jr. and Glenn Cicero would begin to pay Nicholas Cicero, Sr., three thousand dollars ($3,000) a month in rent and the constructive trust action would be dismissed without prejudice [FN1]. Both parties agreed to this stipulation, were allocuted, and the case was marked settled.

As Mr. Nicholas Cicero, Sr., had previously done in his federal action, he reneged on the settlement he willingly entered into before this Court on November 12, 2008. This Court, eight days thereafter, received the defendant's pro se Order to Show Cause indicating that he cannot comply with the settlement for numerous, yet indiscernible, reasons. Plaintiffs cross moved for [*3]an order compelling the defendant, Nicholas Cicero, Sr., to comply with the terms of the settlement entered into on November 12, 2008. Oral argument was held on both motions on January 27, 2009. At that time the Court denied Nicholas Cicero, Sr.'s Order to Show Cause to nullify and/or reargue the settlement and granted the plaintiff's motion to compel Nicholas Cicero, Sr. to comply with the terms of the settlement.

On March 13, 2009, this court received the instant Order to Show Cause from the plaintiffs requesting to hold defendant Nicholas Cicero, Sr., in contempt of court for failing to comply with the terms of the settlement and/or failing to adhere to the order compelling him to comply. Nicholas Cicero, Sr. opposed the motion with papers of a very seasoned litigant who possessed an obvious familiarity with legal jargon, terms and procedures. Oral argument was initially held on April 21, 2009. At that time, it was revealed that the building permits which the plaintiffs supplied to Nicholas Cicero, Sr., as a result of a filing error, possessed the incorrect lot number. However, Mr. Cicero, Sr., agreed on the record, numerous times, that he would be willing to sign the building permits, provided the correct lot number was indicated. After a recess for the parties to perform the agreed upon action, they returned whereby Nicholas Cicero, Sr., still willfully failed to comply with (1) the stipulation he agreed to on November 12, 2008, (2) the motion compelling him to comply, heard on January 27, 2009 and (3) his agreement, not one hour prior, where he again agreed to sign the building permits. As a result, this court adjourned the case for a contempt hearing scheduled for April 27, 2009.

On April 27, 2009, the contempt hearing began and six hours of testimony were given, mostly from Mr. Cicero, Sr., during his cross examination of his son, Nicholas Cicero, Jr., wherein he attempted to reargue the merits of the federal litigation, the appeals, and the underlying settlement. The court then adjourned the hearing to continue on April 29, 2009, during which another three hours of testimony were given, again mostly by Nicholas Cicero, Sr., who again attempted to reargue and renegotiate his previous settlements of this action and the federal litigation. Throughout this generous hearing, Nicholas Cicero, Sr. performed as a seasoned, non-represented litigant who because of that status felt that no bounds, no laws and no issues should prevent his actions in anyway. Further, Nicholas Cicero, Sr.'s actions in reneging and failing to abide by any settlement he's ever entered into, and failing to perform any task he's ever agreed to perform has seriously weakened the veracity of his filibusters. Nicholas Cicero, Sr.'s numerous references to his disadvantage as a pro se litigant are disingenuous and clearly contradicted by his knowledge, behavior and phrasing. This court gave Nicholas Cicero, Sr., the opportunity to obtain legal counsel on numerous occasions, however, as in previous litigations, he chose to proceed pro se as his fondness for the legal arena is evident. Nicholas Cicero, Sr., has, to date, failed to provide this court with any rational, discernable or germane reason as to why he refuses to sign the building permits as agreed to in the November 12, 2008, settlement stipulation. His arguments that he wants to settle the constructive trust action contradicts his later statements that he has a right to litigate the ownership of the property. Mr. Cicero Sr.'s circular reasoning for his completely illogical arguments provides this court with no reason for his noncompliance or refusal to comply with the settlement except his misdirected anger at his sons for settling the decade long Federal Court action.

With respect to the instant motion for contempt, it is established that "[p]ursuant to the Judiciary Law, a court may punish a party to a pending civil action by fine and/or imprisonment [*4]for disobedience to its lawful mandate which disobedience may defeat, impair, impede, or prejudice a right or remedy of another party to the action" (Dankner v. Steefel, 41 AD3d 526, 527 [2d Dept., 2007]). Further,

"[t]he failure to obey a lawful order of a court is a species of contempt. A contempt of court ultimately may constitute a criminal contempt, a civil contempt, or both a criminal and a civil contempt. A period of incarceration may be imposed upon a finding of either a criminal or civil contempt. When a period of incarceration is imposed, what distinguishes a criminal contempt from a civil contempt is, in part, the purpose for which the incarceration is imposed. When the purpose of committing an individual to jail is in the nature of vindicating the authority of the court, protecting the integrity of the judicial process, or compelling respect for the court's mandates, the contempt is a criminal contempt. In order to sustain a finding of criminal contempt, there must be proof beyond a reasonable doubt that the contemnor willfully failed to obey an order of the court." (Matter of Rubackin v. Rubackin, ___ AD3d ___, 2009 NY Slip Op 1488, *3 [2d Dept., 2009]).

In contrast, "[c]ivil contempt is defined as disobedience to a lawful mandate of the court which prejudices the rights or remedies of another party to the litigation. The contempt must be proven by clear and convincing evidence" (Matter of Romanello v. Davis, 49 AD3d 652, 653 [2d Dept., 2008][internal citations omitted]; Kalish v. Lindsey, 47 AD3d 889, 891 [2d Dept., 2008]).

Here, the court finds that Nicholas Cicero, Sr.'s actions were calculated to, and actually did defeat, impair, impede, or prejudice the plaintiffs rights and remedies (Matter of Romanello v. Davis, 49 AD3d 652, 653 [2d Dept., 2008][internal citations omitted]; Kalish v. Lindsey, 47 AD3d 889, 891 [2d Dept., 2008]; Dankner v. Steefel, 41 AD3d 526, 527 [2d Dept., 2007]). There is clear and convincing evidence that his persistent refusal to sign the building permits has evidently impeded the plaintiffs earning capacity for at least one year due to the Service Station's inability to pump gas. Clearly, Nicholas Cicero, Sr. failed to comply with the terms of the settlement entered into and agreed upon by all parties before this court on November 12, 2008. Namely, his failure to sign the building permits so that remediation and installation of the new pumps can be completed. The failure to comply with the terms of the settlement which would dramatically enhance the value of the property, provide income to him and his two sons during a tenuous economic climate in this country, and expedite a remediation situation on the property threatening the community at large, is willfully impeding the rights of the plaintiffs.

The plaintiffs have shown, through admissible evidence, that the profits lost based upon the inability to sell gasoline at the service center for over one year, is approximately one hundred thousand dollars ($100,000), $1,923.07 per week, or $274.72 per day. Further, Nicholas Cicero, Sr., would begin to collect rent from his sons (which was never collected in the past) in the amount of $3,000 per month, once the permits are issued and defendant's can begin pumping gas. Defendant's inability to provide this court with any rational reason why a stipulation of settlement clearly agreed to by all parties that would foster favorable monetary results on both parties is beyond ludicrous.

As a result, after hearing all the testimony, reviewing all papers and exhibits presented in [*5]this case, the court directs the following: the New York City Buildings Department is hereby ordered and directed to accept and process the application for the building permits for Cicero Service Center with the signature of Nicholas Cicero, Jr., provided that the application conforms in all other respects to the requirements by the NYC buildings department (see Texaco v. Frey, 66 Misc 2d 117, 118 [Nassau Cty., 1971][directing the Town to accept the building permits signed by the long term lessee of the property, without the owner's consent, where the long term lessee had authority to remove/replace building structures in the lease]). In Texaco, the court directed that the signature of a long term lessee of certain real property satisfied the building department's requirement of owner's consent' where the lease provided the lessee could alter the building structure at will. The Court noted that the owner was clearly dissatisfied with the rent and the lessee bringing another action to compel consent would only serve to cause a multiplicity of actions' and in the interests of justice ordered the lessee signature be accepted.

Similarly, here, Nicholas Cicero, Sr., refuses to sign the building permits for no germane reason and only seeks to relitigate and/or renegotiate a multitude of cases and reneged upon settlements. Further, the plaintiffs and defendants have conceded that this was a family run enterprise for over two decades. The testimony of Nicholas Cicero, Sr., and Joan Cicero both indicated that the Cicero Service Center was run by all the parties, that both Nicholas Jr., and Glenn were very good mechanics on the property and further that the defendants are leaving the Service Center to the plaintiffs in their will. As a result, this family, who ran this gasoline station together for over twenty years, has broken down as a result of Nicholas Cicero, Sr.'s anger at his sons for closing a decade long federal litigation wherein Sunoco agreed to pay 100% of the remediation plus a monetary amount to the Ciceros. It is clear that all parties have a vested interest in this property and have worked to make it succeed. The unwillingness of Nicholas Cicero, Sr., to sign the building permits further frustrates the idea that he wishes to resume making a profit and in fact enhance the property. The property in question used to be a lucrative gasoline station and the lost profits range in the thousands, the constructive trust action is settled, per the stipulation of November 12, 2008, and both Nicholas Jr., and Glenn have worked on the property as owners and are therefore entitled to compliance with the stipulation of settlement.

Therefore, in the interests of justice, to hopefully avoid a barrage of further litigation, this court will direct the New York City Department of Buildings to accept the signature of Nicholas Cicero Jr., on the application for the building permits to install the new pumps. The courts notes, that this order applies to the aforementioned permits for the installation of the new pumps ONLY. This does not extend to any previous or subsequent permits and applies only if the applications conform, in all other respects, to the NYC Building Department Requirements.

Accordingly, it is

ORDERED that the plaintiff's Order to Show Cause is hereby granted in the following respects only, it is

ORDERED that the New York City Department of Buildings is hereby directed to accept the application for building permits for Cicero Service Center for the installation of the new pumps with the signature of NICHOLAS CICERO, JR., and it is further

ORDERED that this order only applies presuming the application conforms, in all other [*6]respects, to the New York City Department of Buildings requirements, and it is further

ORDERED that this Order only applies to these permits ONLY and will not extend to any previous or subsequent permits, and it is further

ORDERED that all the terms of the stipulation entered into between the parties on November 12, 2008, is to be complied with as directed.

THIS IS THE DECISION AND ORDER OF THIS COURT!

E N T E R,

Dated: May 22, 2009___________________________________

Hon. Judith N. McMahon

Justice of the Supreme Court Footnotes

Footnote 1:The court notes that Nicholas Cicero, Sr.'s argument that he did not agree to the settlement, without prejudice, is simply meritless. The stipulation entered into between all parties, as indicated on the record, and in fact agreed to beforehand between all parties, clearly stated without prejudice. Further, Mr. Cicero Sr., attempted to utilize this argument in federal court and also reneged on that settlement as well.