New York City Hous. Auth. v Porter

[*1] New York City Hous. Auth. v Porter 2015 NY Slip Op 51246(U) Decided on August 12, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 12, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1820 Q C

New York City Housing Authority Managed By FHA REPOSSESSED HOUSES GP I HOUSES, Appellant-Respondent, August 12, 2015

against

Deborah Porter, Respondent-Appellant.

Appeal, and cross appeal on the ground of inadequacy, from an order of the Civil Court of the City of New York, Queens County (Gilbert Badillo, J.), entered May 10, 2013. The order, insofar as appealed from, granted tenant's motion to punish landlord for civil contempt and imposed a fine of $250 plus costs and expenses.

ORDERED that the cross appeal is dismissed as abandoned; and it is further,

ORDERED that the order, insofar as appealed from, is reversed, without costs, and tenant's motion to punish landlord for civil contempt is denied.

In this nonpayment proceeding, tenant, after being evicted pursuant to a default final judgment, moved to be restored to possession. By order dated June 14, 2010, the Civil Court granted tenant's motion and directed landlord to restore tenant to possession forthwith and to return her personal property. Thereafter, tenant moved to punish landlord for civil contempt (see Judiciary Law § 753), alleging that landlord had failed to comply with the June 14, 2010 order. Landlord opposed the motion, asserting that the subject house had been rendered uninhabitable and that landlord had attempted to relocate tenant in accordance with its policies. Applying the standards applicable to criminal contempt motions (see Judiciary Law § 750), the Civil Court denied tenant's motion. This court reversed that order (New York City Hous. Auth. v Porter, 40 Misc 3d 41 [2012]) and remitted the matter to the Civil Court for a new determination upon the application of the standards governing motions to punish for civil contempt. By order entered May 10, 2013, insofar as appealed from, the Civil Court granted tenant's motion. Landlord appeals and tenant cross appeals. As the cross appeal has not been timely perfected, it is dismissed as abandoned.

"To sustain a civil contempt, a lawful judicial order expressing an unequivocal mandate must have been in effect and disobeyed," "the party to be held in contempt must have had knowledge of the order," and "prejudice to the rights of a party to the litigation must be demonstrated" (McCain v Dinkins, 84 NY2d 216, 226 [1994]). On appeal, landlord correctly argues that tenant, who testified at the contempt hearing that she absolutely would not move back to the street on which the house to which she sought to be restored is located, did not demonstrate that she was prejudiced by landlord's failure to comply with the restoration order.

Accordingly, the order, insofar as appealed from, is reversed and tenant's motion to punish landlord for civil contempt is denied.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decision Date: August 12, 2015