Dietrich v Michii

Dietrich v Michii 2008 NY Slip Op 10446 [57 AD3d 1527] December 31, 2008 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

Deena K. Dietrich, Respondent, v Takako Michii, Appellant.

—[*1] Gross, Shuman, Brizdle & Gilfillan, P.C., Buffalo (Leslie Mark Greenbaum of counsel), for defendant-appellant.

Robert R. Radel, Buffalo, for plaintiff-respondent.

Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), entered July 14, 2008. The order, upon finding defendant in contempt of court, imposed a fine and a term of intermittent incarceration.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this action for breach of contract, defendant appeals from an order finding her in contempt of court for failing to comply with the terms of a prior order and imposing sanctions that included, inter alia, a term of intermittent incarceration. Contrary to defendant's contention, plaintiff established by clear and convincing evidence that defendant, a judgment debtor, refused to obey the prior order (see Gray v Giarrizzo, 47 AD3d 765 [2008]), and that her conduct did "defeat, impair, impede, [and] prejudice the rights [and] remedies of" plaintiff (Judiciary Law § 770). Consequently, Supreme Court providently exercised its discretion in imposing a term of intermittent incarceration upon finding defendant in civil contempt (see § 753 [A] [1]; cf. Gray, 47 AD3d at 766; see generally McCain v Dinkins, 84 NY2d 216, 225-226 [1994]). Indeed, the record supports the court's determination that defendant failed to present credible evidence that she was financially unable to comply with the prior order (see Matter of Powers v Powers, 86 NY2d 63, 69-70 [1995]; Matter of Commissioner of Social Servs. v Rosen, 289 AD2d 487, 488 [2001]; cf. Joachim v Joachim, 57 AD2d 546 [1977], appeal dismissed 42 NY2d 1011 [1977], cert denied 434 US 1066 [1978]). Present—Scudder, P.J., Smith, Centra and Fahey, JJ.