Crisona v. Eastern Properties Imp. Corp.

• Decision Date: 21 February 1967
• Citation: 27 A.D.2d 717,277 N.Y.S.2d 477
• Parties: Claire P. CRISONA, Plaintiff-Respondent, v. EASTERN PROPERTIES IMPROVEMENT CORPORATION, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 477

277 N.Y.S.2d 477

27 A.D.2d 717

Claire P. CRISONA, Plaintiff-Respondent, v. EASTERN PROPERTIES IMPROVEMENT CORPORATION, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Feb. 21, 1967.

F. S. Polestino, Jamaica, for plaintiff-respondent.

E. R. Sullivan, New York City, for defendant-appellant.

Before STEVENS, J.P., and STEUER, CAPOZZOLI, and RABIN, JJ.

PER CURIAM.

Order entered on November 30, 1966, in these proceedings supplementary to judgment, which found the defendant corporation and four of its eight directors in civil contempt for defendant's failure to turn over certain assets enumerated in a prior order served upon it and said directors, modified, on the law and on the facts, with $30 costs and disbursements to respondent as against the defendant (corporation), without costs and disbursements as against the individual directors, and matter remanded to Special Term for a hearing to determine whether any or all of the directors served were, in fact, guilty of contumacious acts, and otherwise affirmed. In view of the mere conclusory allegations contained in the moving papers and 'the seriousness of an adjudication of contempt' (James v. Powell, N.Y.L.J. October 6th, 1966, p. 15, col. 1), the request for a hearing contained in the affirmation in opposition to the motion to punish the four directors for contempt should have been granted. The contention of the dissent that the individual directors are in a position to make physical delivery of, and that they have access to, the property in question is not supported by the record.

All concur except STEUER, J., who dissents in the following memorandum:

STEUER, Justice (dissenting):

I dissent and agree with Special Term that there is no issue which requires a hearing. It has already been determined that the corporation is required to turn over its property to the extent needed to satisfy the judgment and the results of this appeal affirm that the corporation has been contumacious in its failure to comply with the court's directive. The individual defendants are the persons who have actual physical control of certain of this property. They assert two reasons or excuses for their failure to comply with the order: first, that they do not constitute a majority of the board of directors and cannot act without the acquiescence of the remaining members; and, second, that delivery of the property would constitute a preference under the laws of Delaware, where the...