Bluff Point Townhouse Owners Assn., Inc. v Kapsokefalos
Annotate this CaseDecided on September 9, 2016
Supreme Court, Clinton County
Bluff Point Townhouse Owners Association, Inc., Plaintiff,
against
Lisa Kapsokefalos and KENNETH GERDES, Defendants.
2016-0843
Niles & Bracy, PLLC, Plattsburgh, (John M. Grotty, of counsel) for plaintiff.
The Clements Firm, Glens Falls, (Thomas G. Clements, of counsel) for defendants.
Robert J. Muller, J.
Presently before the Court is a motion by Order to Show Cause seeking to hold the defendants in contempt.
Defendant Lisa Kapsokefalos and her husband, defendant Kenneth Gerdes, are the owners of a townhouse located at 131 Wood Cliff Drive in the Town of Plattsburgh, Clinton County. This townhouse is within the community of Bluff Point and subject to various restrictive covenants that run with the land. Plaintiff is a not-for-profit corporation formed for the purpose of enforcing these restrictive covenants, as well as collecting monthly dues to cover the costs of maintaining common areas in the community.
There is a long history of litigation between these parties, with two prior actions having been commenced against defendants as a result of their failure to comply with certain restrictive covenants and pay the monthly dues. The second of these two actions was assigned to this Court with a Decision and Order issued on January 6, 2014 awarding plaintiff summary judgment for the relief requested in the complaint.[FN1] Specifically, defendants were directed to pay the monthly [*2]dues outstanding from August 2007 to December 2013.[FN2] While defendants complied with this Decision and Order, they have since refused to pay monthly dues and presently owe $2,900.00 for those dues outstanding from January 2014 to June 2016.
Additionally, on June 16, 2016, Kapsokefalos painted a sign on the garage door of her townhouse unit which reads " 'Property Rights Matter!!!' ". According to Emilie Perkins, defendants' neighbor, the sign is "written in large letters and appears to have been spray painted [with] the visual appearance of graffiti..." Kapsokefalos "also painted with red paint the trim around the second story windows of her townhouse[, which] had been painted white in conformance with the color scheme approved for exterior pain trim colors by [plaintiff] at earlier annual meetings".
On July 7, 2016, plaintiff commenced this action against defendants to recover the $2,900.00 in outstanding monthly dues, as well as to compel them to remove the sign from their garage and repaint the trim on their second story windows. Presently before the Court is defendants' motion by Order to Show Cause seeking to hold defendants in contempt of court.
"To establish civil contempt, plaintiff[ is] required to demonstrate by clear and convincing evidence that defendants knowingly disobeyed a clear and unequivocal court order and that such conduct prejudiced plaintiff['s] rights" (Hush v Taylor, 121 AD3d 1363, 1364 [2014]; see Town of Copake v 13 Lackawanna Props., LLC, 73 AD3d 1308, 1309 [2010]; Beneke v Town of Santa Clara, 61 AD3d 1079, 1080-1081 [2009]). Here, plaintiff seeks to hold defendants in contempt not as a result of their failure to comply with a court order, but rather as a result of their failure to obey plaintiff's rules and regulations and the restrictive covenants in their deed. There does not appear to be any authority for a contempt finding under these circumstances, nor does plaintiff cite any such authority in its motion papers.
Briefly, had plaintiff moved by Order to Show Cause to compel defendants to comply with the restrictive covenants in their deed, then plaintiff would perhaps be entitled to the requested relief. In this regard, the restrictive covenants in defendants' deed provide that "[n]o 'For Rent' or 'For Sale' sign, or any sign of any kin[d], shall be erected or displayed on any portion of the structure at any time". The restrictive covenants further require defendants to "observe and comply with all reasonable rules and regulations established by [plaintiff] providing for the comfort, health, peace and enjoyment of the owners of lodges located on the lots [in Bluff Point]". In this regard, plaintiff has submitted a copy of certain meeting minutes providing that townhouse owners in the community must paint their trim with either "Benjamin Moore Low Lustre, Acrylic Latex Brilliant White No. 10301" or "Benjamin Moore Philipsburgh Blue #HC 159".
Based upon the foregoing, and following oral argument on September 7, 2016 for the reasons indicated, the motion for contempt is denied in its entirely, and it is
SO ORDERED!
The original of this Decision and Order has been filed by the Court together with the Order to Show Cause dated July 19, 2016 and an amended Order to Show cause dated August 9, [*3]2016 and the submissions enumerated hereinafter. Counsel for defendants is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon plaintiff in accordance with CPLR 5513.
Dated: September 9, 2016
Lake George, New York
____________________________________
ROBERT J. MULLER, J.S.C.
ENTER:
Papers reviewed:
1. Order to Show Cause dated July 19, 2016 ;
2. Amended Order to Show Cause dated August 9, 2016;
3. Affirmation in Support of Order to Show Cause of John Crotty, Esq. dated June 24, 2016 together with Exhibits "A" through "C";
4. Summons and Complaint each dated June 24, 2016 with Exhibits "A" through "C";
5. Opposing Affidavit of Thomas G. Clements sworn to August 31, 2016 together with Exhibit "A";
6. Reply Affirmation in Response to Affidavit in Opposition to Preliminary Injunction of John M. Crotty, Esq. dated September 6, 2016 and the
7. Affidavit of Stuart Crisp sworn to September 6, 2016 submitted in support of the motion. Footnotes
Footnote 1:The first action was assigned to the Honorable Kevin Ryan of the Clinton County Supreme Court and also resulted in an award of summary judgment to plaintiff (see Perkins v Kapsokefalos, 57 AD3d 1189 [2008], lv denied 12 NY3d 705 [2009]).
Footnote 2:This Decision and Order was subsequently modified on appeal, but only with respect to the calculation of interest (see Bluff Point Townhouse Owners Assn., Inc. v Kapsokefalos, 129 AD3d 1267 [2015], lv denied 26 NY3d 910 [2015])
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