Hasson v S.B.J. Assoc., LLC

[*1] Hasson v S.B.J. Assoc., LLC 2017 NY Slip Op 50394(U) Decided on April 3, 2017 Supreme Court, Suffolk County Hudson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 3, 2017
Supreme Court, Suffolk County

Henry Hasson, Marvin Richman, John DeGregorio and Greens at Half Hollow Home Owners Association, Inc., Plaintiff,

against

S.B.J. Associates, LLC, Green at Half Hollow, LLC, Steven Kaplan, Adriatic Development Corp., Russel Mohr, Joseph Lafferty, James Kaplan, Greens Golf Club, LLC and Town of Huntington, Defendant(s).



021860/2009



HAMBURGER MAXSON YAFFE KNAUER, McNally, LLP

Attorneys for Plaintiffs

By: Richard Hamburger, Esq.

25 Broadhollow Rd, Suite 301E

Melville, NY 11747

ROSENBERG CALICA & BIRNEY LLP

Attorneys for all Defendants -except

The Town of Huntington

By: Ronald J. Rosenberg, Esq.

100 Garden City Plaza, Ste 408

Garden City, NY 11530

CINDY ELAN-MANGANO, ESQ. Huntington Town Attorney

By: John C. Bennett, Esq.

191 New York Avenue, Suite 202

Huntington, NY 11743
James Hudson, J.

Upon the following papers numbered 1 to 53 on these Motions/Orders to Show Cause for Mot. Seq. No.: 012 Contempt and Motion Seq. No.:013 for an Extension; Notice of Motion/ Order to Show Cause and supporting papers 1-26 (Mot. Seq. No.: 012) , 1-8 (Mot. Seq. No.: 013); Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 27-31(Mot. Seq. No.: 012), 9-33 (Mot. Seq. No.: 013) and 34-39 ; Replying Affidavits and supporting papers 32-33 (Mot. Seq. No.: 012), 40-43, and 44-53 (Mot. Seq. No.: 013); Memorandum of Law 34-35 (Mot. Seq. No.: 012) ; (and after hearing counsel in support and opposed to the motion), it is

ORDERED, that the motion (Seq. No.:013) of the Defendants for an extension to comply with the August 24, 2012 Judgment of the Court is denied under the circumstances presented (CPLR 2004). It is further

ORDERED, that the motion (Seq. No.:012) for an order adjudicating Defendants Greens at Half Hollow Hills LLC, Steven Kaplan and Russell Mohr as being in contempt is granted as to the Defendant Greens at Half Hollow Hills, LLC. As to Defendants Mr. Kaplan and Mr. Mohr, the motion is denied with leave to renew in sixty days (60) from service of a copy of this Order with notice of entry. It is further

ORDERED, that the Court will impose a fine upon Defendant Greens at Half Hollow Hills, LLC, in a sum to be determined by the Court after a hearing, representing the legal fees incurred by the movant Greens at Half Hollow Hills Homeowners Association, Inc. It is further

ORDERED, that the parties are directed to appear at The New York State Supreme Court of Suffolk County, Part XLVI, on Monday, May 8, 2017, at 2:00 pm, for the purposes of a hearing to determine the legal fees of Greens at Half Hollow Hills Homeowners Association, Inc. It is further

ORDERED, that this contempt may be purged by complying with the August 24, 2012 Judgment of the Court. Specifically, Defendant Greens at Half Hollow Hills, LLC, shall remove the offending structure (i.e., the maintenance building) and execute the quit claim deed pertaining to the subject parcel within sixty (60) days from service of a copy of this Order with notice of entry. In the event that the aforementioned obligations have not been fully satisfied, Defendant Greens at Half Hollow Hills, LLC, shall pay a fine of $250.00 per day to the movant Greens at Half Hollow Hills Homeowners Association, Inc., beginning on the sixty-first (61st) day.

Obedientia est legis essentia [FN1] (11 Coke 100). The maxims of Lord Coke, employed not as authority but solely for historical background, demonstrate the prescience of the law's immortal sage.

The decision encompasses two separate motions for relief. The Greens at Half Hollow Home Owners Association Inc. (hereinafter referred to as HOA), motion for contempt to enforce a final judgment and a separate motion of the Defendant Greens at Half Hollow LLC (hereinafter referred to as GHH), to extend time for GHH to comply with the final judgment.

Although Mr. Rosenberg's motion was filed subsequent to the application of Mr. Hamburger, it will be the initial subject of the Court's discussion.

The facts of this case were set forth at length in the Court's decision of May 1, 2012 and are incorporated by reference herein. Prior to its analysis of the motions, the Court would be remiss if it did not compliment Mr. Hamburger, Mr. Rosenberg and Mr. Bennett for the eloquence of their respective briefs. Their clients, the profession of law, and hence the Court, are honored by such advocates.

On August 24, 2012, the Court (Pines J.), issued a Judgment which provided, in relevant part, that Defendant Greens at Half Hollow LLC (GHH) was Ordered to:

"...remove their two trailers from the subject parcel within sixty days from the date of service of Notice of Entry of this Judgment...remove all other structures including the maintenance building and the parking lot from the subject parcel within One Hundred and Twenty days from service of a copy of notice of entry of this judgment... [and]... that within sixty days of the removal of the aforementioned structures, GHH shall execute, acknowledge and deliver to HOA a quitclaim deed..."

After the issuance of the Judgment, a series of appeals followed which eventually resulted in the affirmance of same. Due to the unfortunate delays occasioned by the appeals, the date of compliance for the Judgment was ultimately June 5, 2016. The uncontroverted proof submitted to the Court demonstrates that the trailers have been removed but the remaining relief directed by the Court, approximately five (5) years ago, has yet to be satisfied.

In support of its motion for an extension of time to satisfy Justice Pine's Judgment, GHH cites to the holding in Mochkin v. Mochkin, 120 AD3d 776, 777, 992 N.Y.S.2d 90, 92 (2nd Dept.2014). Such reliance is misplaced. The facts in Mochkin involved the enforcement of a stipulation of settlement against a defendant which required him to pay a sum of money to the appellant. The decision in Mochkin noted that " the Supreme Court extended the due date of the final settlement payment subject to the Defendant's right to seek a further extension if necessary, due to the appellant's conduct." [emphasis ours] (Id. at 777). In contrast, the delays in the matter at hand cannot be attributed to the HOA, the Town, or any of the other parties. GHH is the sole author of the inordinate delays in fulfilling the mandate of the Court. Mr. Rosenberg's other authority is similarly distinguishable. It would be an improvident exercise of discretion to grant the motion for an extension under these circumstances. Accordingly, the motion for an extension must be denied (CPLR 2004).

We now turn to the question of how the failure to fully comply with the August 24, 2012 Judgment should be addressed. The HOA seeks an adjudication of contempt against GHH and its principals Mr. Steven Kaplan and Mr. Russell Mohr. We shall now address that motion.

The remedy of civil contempt serves as a vindication for parties who have been "harmed by [a] contemnor's failure to obey a court order" (Department of Housing Preservation and Development of City of New York v. Deka Realty Corp.208 AD2d 37, 42, 620 N.Y.S.2d 837 [2nd Dept.1995]; Judiciary Law § 753]). While criminal contempt (Judiciary Law § 750) is used to punish those who wrongfully rebel against judicial authority and is employed "to protect the integrity and dignity of the judicial process and to compel respect for its mandates," civil contempt penalties are invoked "not to punish but, rather, to compensate the injured private party or to coerce compliance with the court's mandate" (Department of Housing Preservation and [*2]Development of City of New York v. Deka Realty Corp., supra at 42; Matter of Department of Envtl. Protection of City of NY v. Department of Envtl. Conservation of State of NY, 70 NY2d 233, 239, 519 N.Y.S.2d 539 [1987]).

The movant seeking to have a respondent adjudicated as being in criminal contempt must prove the willful and contumacious conduct by clear and convincing evidence (Rolon v. Torres, 121 AD3d 684, 993 N.Y.S.2d 348 [2nd Dept.2014); Bemis v. Town of Crown Point, 121 AD3d 1448,1452, 995 N.Y.S.2d 794 [3rd Dept.2014]).

Civil contempt, however, has a different standard. This was pointed out by the Court in the case of El-Dehdan v. El-Dehdan, 26 NY3d 19, 19 N.Y.S.3d 475(2015). Wilfulness, the Court noted, is not an element of civil contempt. Instead, the elements are as follows:

"First, 'it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect.' Second, '[i]t must appear, with reasonable certainty, that the order has been disobeyed.' Third, 'the party to be held in contempt must have had knowledge of the court's order, although it is not necessary that the order actually have been served upon the party.' Fourth, prejudice to the right of a party to the litigation must be demonstrated'" (El-Dehdan v. El-Dehdan, 26 NY3d 19, 29, 41 N.E.3d 340, 346 (2015) quoting McCormick v. Axelrod, 59 NY2d 574, 453 N.E.2d 508, amended, 60 NY2d 652, 454 N.E.2d 1314 (1983, Lawrence Cooke CJ in a per curiam opinion).

Defendant GHH opposes the motion for contempt on the grounds of the Town of Huntington being the proper party to bring this motion since the Judgment was in its favor and not in favor of the movant. We disagree. As discussed infra, the movant HOA is clearly suffering an impairment of its rights as a result of the respondent GHH's actions which gives HOA standing to bring the instant motion. The defense also asserts that Plaintiff HOA has failed to prove, by clear and convincing evidence, a violation of the Judgment. The defense also asserts that there will be severe consequences if the Judgment is complied with, namely that the adjoining golf course will cease operations and close if the maintenance building is removed.

This last statement is most telling. By describing the lack of feasibility of compliance, and by making a motion for an extension of time to satisfy the Judgment, Defendant GHH, tacitly admits that it has not complied with the plainly worded Order.

The essence of GHH's explanation is one of economic utility. It argues that it should be allowed to construct a new maintenance building before the old one is demolished in order to prevent closure of the golf course, which, if this occurred, in turn would cause economic distress to the residents of the community by decreasing the value of their homes.

Moreover, Defendant GHH states that it

"...has complied with the judgment to the extent possible...GHH has filed a demolition permit application which is required by the Town before the building can be demolished, and the Town has confirmed that it has in its possession all documents it needs to issue that permit except for the utility cut off letters which it does not require prior to November 1, 2016 after the golf season has ended" (Affirmation of Ronald Rosenberg dated August 9, 2016 (page 3, para 9).

In answering a motion for contempt, the party alleged to have disobeyed the Court's Order may assert factual impossibility as a defense (Badgley v. Santacroce, 800 F.2d 33, 36 [2d Cir. 1986]). This must not only be alleged. It must be proven by the offending party (Id. at 36 citing, [*3]Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692, 713 (D.C.Cir.1975); Aspira of New York, Inc. v. Board of Education, 423 F. Supp. 647, 654 [S.D.N.Y.1976]). This is a heavy burden and will not be satisfied by showing that the respondents " were attempting to comply or acting in good faith" (McCain v. Dinkins, 192 AD2d 217, 219, 601 N.Y.S.2d 271, 273 (1993), aff'd as modified, 84 NY2d 216, 616 N.Y.S.2d 335 [1994]).

With all respect to the argument of Mr. Rosenberg (and the memory of Jeremy Bentham) a party does not have leave to disobey a Court order by applying the philosophy of utilitarianism. The respondent GHH's admitted conduct demonstrates, beyond cavil, that it was presented with a clear order and attempted " to fashion its own remedy" (NY City Hous. Auth. v. Porter, 40 Misc 3d 41, 42, 970 N.Y.S.2d 655, 657 (App. Term 2012) quoting, Peters v. Sage Group Assoc., 238 AD2d 123, 123, 655 N.Y.S.2d 500 [1997]). This cannot be countenanced under any circumstances, and mandates a finding of civil contempt.

The Court's usual course in deciding a motion for contempt would be to order a hearing. Since the sworn representations of GHH in its moving and responding papers have disposed of all relevant questions of fact, however, the application can be decided on papers alone. Based on the forgoing, the Court finds that the following has been established by clear and convincing evidence:

First, that the Judgment of August 24, 2012 was a lawful Order of the Court and expressed an unequivocal mandate to remove the subject building and convey title. Secondly, the actions of GHH in delaying removal of the maintenance building as it sought to construct another building as its replacement constitutes disobedience of the August 24, 2012 Judgment. Third, Respondent GHH had knowledge of the August 24, 2012 Judgment. Finally, by not complying with the Court's direction, the ultimate aspect of Justice Pine's Judgment (the conveyance of title) cannot take place. This is certainly a "prejudice to the right of a party to the litigation" (McCormick v. Axelrod, supra, at 584).

Accordingly, the Court finds GHH to be in contempt of the August 24, 2012 Judgment. This contempt may be purged by removal of the offending structure and executing the quit claim deed pertaining to the subject parcel within sixty (60) days from service of a copy of this Order with notice of entry. In the event that the aforementioned obligations have not been fully satisfied, GHH shall pay a fine of $250.00 per day to the movant HOA. Regardless of the ultimate expected compliance with the August 24, 2012 Order, the Court will impose a fine on GHH amounting to the legal fees incurred by HOA in making the instant contempt motion (Gottlieb v. Gottlieb, 137 AD3d 614, 28 N.Y.S.3d 37 [1st Dept. 2016]).

The foregoing constitutes the decision and Order of the Court.

DATED: APRIL 3, 2017

RIVERHEAD, NY

HON. JAMES HUDSON, A.J.S.C. Footnotes

Footnote 1:Obedience is the essence of the law