St. Paul's Sch. of Nursing, Inc. v Papaspiridakos

[*1] St. Paul's Sch. of Nursing, Inc. v Papaspiridakos 2014 NY Slip Op 50065(U) Decided on January 23, 2014 Supreme Court, Queens County Siegal, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 23, 2014
Supreme Court, Queens County

St. Paul's School of Nursing, Inc. doing business as St. Paul's School of Nursing, individually, and on behalf of the students, faculty, and administration of St Paul's School of Nursing, Plaintiff,

against

Nick Papaspiridakos, Defendant.



989/12

Bernice D. Siegal, J.

Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:

Self represented defendant Nick Papaspiridakos moves for an order granting leave to reargue, renew and recall this court's decision of August 12, 2013, which found the defendant in civil contempt of the January 17, 2012 so-ordered stipulation and in criminal contempt of said so-ordered stipulation, and imposed a fine of $1,000.00, and modified the so-ordered stipulation.

A motion for reargument is one "based upon matters of fact or law allegedly [*2]overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221[d][2]). A motion to renew is one "based on new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and ...shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][2][3]).

Defendant's motion for leave to renew is denied. Defendant's motion for leave to reargue is granted solely as to the issue of criminal contempt as this court misapprehended that plaintiff had failed to provide the defendant with sufficient notice that it was seeking criminal contempt, as well as civil contempt, in its order to show cause and supporting papers, and did not thereafter seek to amend its motion papers. This court, during the course of the evidentiary hearing stated that it was a hearing involving civil contempt. Although counsel for plaintiff in his closing made reference to the standards for civil and criminal contempt set forth in Town Bd. of Town of Southampton v R.K.B. Realty, LLC, 91 AD3d 628 [ 2d Dept 2012]), this was insufficient to give the defendant proper and sufficient notice (see Simens v Darwish, 104 AD3d 465, 466 [1st Dept 2012]). This court therefore vacates the finding of criminal contempt and the $1000.00 fine imposed, and recalls the decision of August 12, 2013 and the following decision is issued in its stead:

Procedural History

On January 17, 2012, plaintiff St. Paul's (St. Paul's) commenced this action by way of an Emergency Order to Show Cause seeking a preliminary injunction barring defendant Nick Papaspiridakos, a former student at St. Paul's, from entering St. Paul's campuses or from communicating with the school's faculty members or employees as a result of defendant's threats and harassment to St. Paul's faculty and staff, including his admission that he harbored thoughts about shooting several of those faculty and staff members.

On January 17, 2012, plaintiff and defendant entered into a so-ordered stipulation as a result of defendant's repeated threats and harassment of St. Paul's faculty, staff, and students. Paragraph 1 of the so-ordered stipulation provides that defendant agreed "not to enter the leased premises of Staten Island and Queens campuses of St. Paul's School of Nursing." Paragraph 2 of the so-ordered stipulation provides that defendant agreed "not to enter the floor on which the Queens leased premises are located." Paragraph 3 of the so-ordered stipulation provides that defendant agreed "not to initiate communication with faculty, staff, employees or students of St. Paul's School of Nursing." Paragraph 4 of the so-ordered stipulation provides that defendant agreed "not to harass, annoy or otherwise threaten the security of the faculty, staff, employees or students of St. Paul's School of Nursing." Paragraph 5 of the so-ordered stipulation provides that "defendant may communicate with faculty, staff, employees or students who initiate contact with him."

On February 17, 2012, St. Paul's sent a cease and desist letter to defendant with respect to defendant's continued harassment and intimidation of St. Paul's faculty and staff. On March 29, 2012, St. Paul's sent a second cease and desist letter to defendant to [*3]immediately cease and desist from any further conduct in violation of the so-ordered stipulation.

Plaintiff subsequently filed with this court an emergency order to show cause for contempt, pursuant to CPLR §5104 and Judiciary Law §§753(A) and 773, seeking an order finding defendant in contempt for his refusal and/or willful neglect to obey the so-ordered stipulation; imposing a fine upon defendant in the amount of plaintiff's costs and expenses, including attorney's fees, in bringing the order to show cause; compelling compliance with the so-ordered stipulation; requiring that defendant not come within 100 yards of St. Paul's campuses or the homes of current or former St. Paul's faculty and staff members; and requiring that defendant not initiate communications with any relative, neighbor, friend, associate or acquaintance of any current or former St. Paul's faculty or staff members.

This court conducted a contempt hearing on the issue of whether the defendant violated the so-ordered stipulation by calling, by emailing, and by writing letters to St. Paul's faculty and staff, by posting comments on his public Facebook page about St. Paul's faculty and staff, by sending Facebook friend requests to St. Paul's faculty and staff, and by protesting and by handing out flyers outside of St. Paul's campus.

Contentions

Plaintiff contends that defendant is in contempt pursuant to CPLR §5104 as a result of his refusal and/or willful neglect to obey the so-ordered stipulation. Plaintiff further contends that defendant violated the so-ordered stipulation through the following conduct: calling Carol Zajac, campus president of St. Paul's, at her office at St. Paul's on February 8, 2012; sending an email to Dr. Vilma Greene, a general education instructor at St. Paul's, on February 9, 2012; sending friend requests on Facebook to Agnes Quinn, director of nursing at St. Paul's, and Donna Darcy, a clinical coordinator at St. Paul's, on February 9, 2012; sending a friend request on Facebook to Debra Schlesinger-Weil, a nursing instructor at St. Paul's, on February 14, 2012; calling Lynn Salvage (Salvage), an employee of St. Paul's, on her cell phone on February 15, 2012; harassing, annoying, and threatening the faculty, staff, and employees of St. Paul's through defendant's daily Facebook postings; harassing, annoying, and threatening the faculty, staff, employees, and students of St. Paul's by passing out materials containing unattributed threats of shootings at St. Paul's; protesting outside St. Paul's Queens campus on March 16, 2012; threatening to distribute flyers and to protest at Salvage's family home and the train station her elderly father uses on March 27, 2012 via Facebook post; recommending a link to an article regarding a former nursing student's shooting and killing of students and staff members at a nursing school in Oakland on his Facebook page on April 4, 2012; posting harassing comments attacking Salvage's family on Facebook on May 23, 2012; posting threatening comments attacking St. Paul's staff members on Facebook on June 26, 2012; protesting and handing out flyers in front of St. Paul's campus on August 30, 2012 and September 13, 2012; calling and sending a letter to the America Israel Cultural Foundation (AICF) where Salvage sits on the Board; sending a letter to the [*4]home of Agnes Quinn in October 2012; and sending a harassing letter to Agnes Quinn on November 29, 2012 that was part of a mass mailing that her next door neighbor also received.

Defendant contends that he abided with the so-ordered stipulation. He states that he never went inside the building of St. Paul's, and that he had a table set up outside of the building enabling students to take flyers in order to inform them about the school and its faculty, and not to harass the students or St. Paul's staff. Defendant also contends that he did not harass Agnes Quinn by his actions. Defendant further contends that his Facebook posts were never sent to any individual at St. Paul's, but instead, were opinions posted on his public page. Defendant asserts that he called Carol Zajac at her office at St. Paul's on February 8, 2012 in order to inquire as to whether Salvage and Agnes Quinn were fired and that Carol Zajac could not comment on it; and that he called Salvage on her cell phone to clarify that she had been fired and she confirmed that she had been and did not care to talk about it.

Legal Standards

CPLR §5104 provides, in pertinent part, that:

"Any interlocutory or final judgment or order, or any part thereof, not enforceable under either article fifty-two or section 5102 may be enforced by serving a certified copy of the judgment or order upon the party or other person required thereby or by law to obey it and, if he refuses or willfully neglects to obey it, by punishing him for a contempt of the court."

Judiciary Law §753(A)(3) provides, in pertinent part, that: "A court or record has power to punish, by fine and imprisonment, for either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in any of the following cases: . . (3) for any other disobedience to a lawful mandate of the court."

CPLR §5104 provides, in pertinent part, that: "Any interlocutory or final judgment or order, or any part thereof, not enforceable under either article fifty-two or section 5102 may be enforced by serving a certified copy of the judgment or order upon the party or other person required thereby or by law to obey it and, if he refuses or willfully neglects to obey it, by punishing him for a contempt of the court."

Judiciary Law §753(A)(3) provides, in pertinent part, that: [*5]

"A court or record has power to punish, by fine and imprisonment, for either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in any of the following cases: . . (3) for any other disobedience to a lawful mandate of the court."

"A motion to punish a party for civil contempt is addressed to the sound discretion of the court." (Hughes v Kameneva, 96 AD3d 845, 846 [2d Dept 2012]; see also Matter of Philie v Singer, 79 AD3d 1041, 1042 [2d Dept 2010]; Chambers v Old Stone Hill Rd. Assoc., 66 AD3d 944, 946 [2d Dept 2009].) The party seeking to hold another in civil contempt bears the burden of proving the contempt by clear and convincing evidence. (see Hughes, 96 AD3d at 846; Town Bd. of Town of Southampton v R.K.N. Realty, LLC, 91 AD3d 628, 629 [2d Dept 2012]; Matter of Philie, 79 AD3d at 1042; Chambers, 66 AD3d at 946; Rienzi v Rienzi, 23 AD3d 447, 448 [2d Dept 2005].) "To sustain a finding of civil contempt, a court must find that the alleged contemnor violated a lawful order which clearly expressed an unequivocal mandate, and that, as a result of the violation, a right or remedy of a party to the litigation was prejudiced." (Hughes, 96 AD3d at 846, quoting Matter of Philie, 79 AD3d at 1042; see also Town Bd. of Town of Southampton, 91 AD3d at 629; Casavecchia v Mizrahi, 57 AD3d 702, 703 [2d Dept 2008].) Deliberate or willful disobedience is not required, instead, "the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party." (Philie, 79 AD3d at 1042; see also Bais Yoel Ohel Feige v Congregation Yetev Lev D'Satmar of Kiryas Joel, Inc., 78 AD3d 626, 626 [2d Dept 2010]; Casavecchia, 57 AD3d at 703.) In addition, the charge party must have knowledge of the court's order. (See Matter of Dept. of Envtl. Protection of City of New York v Dept. of Envtl. Conservation of State of New York, 70 NY2d 233, 240 [1987]; Town Bd. of Town of Southampton, 91 AD3d at 629; Gerelli Ins. Agency, Inc. v Gerelli, 23 AD3d 341, 341 [2d Dept 2005].)

A so-ordered stipulation constitutes the court's lawful order. Violating a so-ordered stipulation is punishable by contempt. (see Town Bd. of Town of Southampton, 91 AD3d at 629; Fuerst v Fuerst, 131 AD2d 426, 427 [2d Dept 1987].)

Discussion

Plaintiff and defendant agreed on the terms defendant was to follow in the so-ordered stipulation dated January 17, 2012, and defendant had knowledge of the so-ordered stipulation. Paragraph 1 of the so-ordered stipulation states that defendant agreed to not enter leased premises of Staten Island and Queens campuses of St. Paul's. The evidence presented at the hearing establishes that defendant only protested outside of the building and set up a table outside of the front of the building to either hand out flyers or for students to take flyers. Contrary to plaintiff's contention that these activities were not in violation of Paragraph 1 of the so-ordered stipulation, as defendant never entered the leased premises of either campus of St. Paul's. [*6]

Paragraph 3 of the so-ordered stipulation and Order, states that defendant agreed not to initiate communication with St. Paul's faculty, staff, employees, or students.

Defendant admitted at the hearing that he called Carol Zajac, the campus president, at her office; called Salvage on her cell phone; called and sent a letter to AICF, where Salvage is on the board; and sent a letter to the home of Agnes Quinn. Testimony was adduced that defendant's action caused Quinn and Savage stress and fear because defendant knew where both Quinn and Savage lived. Defendant, however, contends that the contents of these letters are not harassing. Even though defendant clarified his reasoning that he called Carol Zajac to inquiry as to whether Salvage and Agnes Quinn had been fired and that he called Salvage to find out whether she was fired, it is beyond dispute that he initiated communication with St. Paul's current and former employees. Defendant, by this conduct, violated paragraph 3 of the so-ordered stipulation, and this conduct prejudiced plaintiff's right or remedy.

In addition, defendant sent Facebook friend requests to Agnes Quinn, Donna Darcy, and Debra Schlesinger-Weil. Agnes Quinn testified at the continued contempt hearing that, even though she accepted his friend request by accident, within two hours she unfriended him. The question becomes whether friend requests initiate communication with St. Paul's faculty, staff, employees, or students. "Social media web sites, such as Facebook . . . , exist to allow individuals to interact with real world' friends, relatives and those individuals sharing common interests that may be as close as your own town, or as far away as a distant continent." (Fawcett v Altieri, 38 Misc 3d 1022 [Sup Ct Richmond County 2013].) Since Facebook serves to allow interaction through communication between individuals, sending Facebook requests to become friends with St. Paul's faculty, staff, employees, or students, defendant's conduct constitutes the initiating of communication.Defendant, thus, violated paragraph 3 of the so-ordered stipulation, and this conduct prejudiced plaintiff's right or remedy.

Defendant's testimony at the continued contempt hearing contradicts itself as to whether he actually handed out flyers to students or these flyers were simply made available to students at a table outside the building. Defendant testified that the flyers consisted of student experiences with comments made by others, and that he had been giving this packet out for two years, in order to inform the students about St. Paul's. In view of the defendant's contradictory statements, it is unclear as to whether he initiated contact with the students and then handed interested students the flyers, or whether the students initiated the contact by walking up to the table to take flyers. In view of defendant's contradictory statements with respect to the flyers, the court finds that plaintiff has not established that the defendant's conduct constituted a violation of the so-ordered stipulation.

With respect to defendant's posts on his public Facebook page, an individual has a constitutional right to post comments on its public Facebook page. However, "there are still consequences for . . . [his/her] public posts. What . . . [he/she] give[s] to the public belongs to the public." (People v Harris, 36 Misc 3d 868, 878 [ NYC Crim Ct New York [*7]County 2012].)Both Agnes Quinn and Salvage testified at the continued contempt hearing that defendant's continuous comments on Facebook such as "Cards are on the table, bullets in the gun", harassed, terrified, and upset them.

Defendant admitted at the continued contempt hearing that he made these posts so that St. Paul's involved staff would read them, but that his intention was not to harass them. Black's Law dictionary defines harassment as "words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose" (Black's Law Dictionary [9th ed. 2009, harassment.) Since these Facebook posts were made to the public on defendant's public Facebook page, and were not posted on anyone's specific Facebook page from St. Paul's faculty, staff, employees, or students, these Facebook posts were not directed at a specific faculty, staff, employee, or student at St. Paul's and did not constitute as harassment in violation of paragraph 4 of the so-ordered stipulation.

"Civil contempt fines must be remedial in nature and effect' and awards should be formulated not to punish an offender, but solely to compensate or indemnify private complainants'." (Town of Bd. of Town of Southampton, 91 AD3d at 630—31, quoting State of New York v Unique Ideas, 44 NY2d 345, 349 [1978]; see also Hinkson v Daughtry-Hinkson, 31 AD3d 608, 609 [2d Dept 2006]; Matter of Dept. of Hous. Preserv. & Dev. of the City of New York v DEKA Realty Corp., 208 AD2d 37, 43 [2d Dept 1995].) Under Judiciary Law §773, fines may be awarded in a civil contempt proceeding where "actual damage has resulted from the defendants' contemptuous acts" or one where "there may be prejudice to a complainant's rights but it is not shown that such an actual loss or injury has been caused." (Town Bd. of Town of Southampton, 91 AD3d at 631; see also Unique Ideas, 44 NY2d at 349; Matter of Dept. of Hous. Preserv. & Dev. of the City of New York, 208 AD2d at 43.)Where, as here, no actual damages have been demonstrated, "a fine may be imposed, not exceeding the amount of the complainant's costs and expenses, and two hundred and fifty dollars in addition thereto, and must be collected and paid, in like manner". ( Judiciary Law 773 ). The court may include in reasonable costs and expenses, reasonable attorney's fees. (see Glennon v Mayo, 174 AD2d 600, 601 [2d Dept 1991]; see also Manes v Manes, 248 AD2d 516, 517 [2d Dept 1998]; Gordon v Janover, 121 AD2d 599, 600 [2d Dept 1986].)

As this court finds defendant in civil contempt of the so-ordered stipulation, a fine of $250.00 is imposed. St. Paul's is directed to submit an affidavit, in connection with the settlement of the order, an affidavit of its counsel as to reasonable attorneys' fees. Such affidavit shall recite the hourly rate for the legal services, the specific services rendered, and the time expended by plaintiff's counsel for the work described, and all costs.

In view of the fact that plaintiff's order to show cause and its supporting papers failed to adequately apprise the defendant that its motion was one for criminal contempt, as well as civil contempt, and as plaintiff did not move to amend the motion at the hearing, plaintiff's motion is limited to civil contempt.

[*8]St. Paul's Various Requests for Additional Relief

St. Paul's request that the court require that defendant Nick Papaspiridakos "not initiate communications with any relative, neighbor, friend, associate or acquaintance of any current or former St. Paul's faculty and staff member" is denied as moot, as the January 17, 2012, so-ordered stipulation remains in effect. St. Paul's request for an order compelling defendant Papaspiridakos to comply with the "order of protection" is denied, as the January 17, 2012, so-ordered stipulation is not an "order of protection", and the so-ordered stipulation remains in effect.

At the continued contempt hearing the parties agreed to modify the so-ordered stipulation. Therefore, St. Paul's request for order requiring Papaspiridakos to not come within 100 yards of the St. Paul's campuses or homes of current or former St. Paul's faculty and staff members, is granted.

Conclusion

For the reasons set forth above, St. Paul's motion is granted to the extent that defendant Nick Papaspiridakos is found in civil contempt of the so-ordered stipulation dated January 17, 2012, and a fine of $250.00 is imposed. St. Paul's is directed to submit an affidavit, in connection with the settlement of the order, an affidavit of its counsel as to reasonable attorneys' fees. Such affidavit shall recite the hourly rate for the legal services, the specific services rendered, and the time expended by plaintiff's counsel for the work described, and all costs. The so-ordered stipulation of January 17, 2012 is modified to include the following paragraph: Defendant Nick Papaspiridakos agrees to not come within 100 yards of the St. Paul's campuses or homes of current or former St. Paul's faculty and staff members.

Settle Order.

___________________________Bernice D. Siegal, J. S. C.