Department of Housing Preservation and Development of City of New York v. Park Properties Development Associates
| Decision Date | 13 March 1992 |
| Citation | 584 N.Y.S.2d 979,154 Misc.2d 315 |
| Parties | DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW YORK, Petitioner, v. PARK PROPERTIES DEVELOPMENT ASSOCIATES, Irving A. Spodek, J. Leonard Spodek, Respondents. DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF THE CITY OF NEW YORK, Petitioner, v. J. Leonard SPODEK and 1601 Beverly Road Realty, Respondents. |
| Court | New York City Court |
Roger Bennet Adler, P.C., New York City, for respondent, Park Properties, et al.
These proceedings were commenced by Orders to Show Cause returnable July 1, 1986. On August 27, 1987, respondents signed consent orders which provided for correction of all pending violations as listed in annexed databases. In September, 1988 the petitioner sought to punish the respondents for contempt of court. Upon inquest, this Court found beyond a reasonable doubt that respondents had wilfully failed to obey the August 27, 1987 order of the Court. 1 Being unsuccessful after several attempts to vacate the June, 1989 orders, respondents appealed to the Appellate Term for the Second and Eleventh Judicial Districts. The Appellate Term affirmed this Court's determinations on May 16, 1990. 2 Leave to appeal to The Appellate Division, Second Department was denied by the Appellate Term on June 27, 1990. Leave to appeal to The Appellate Division, Second Department and reargument for leave to appeal were denied by the Appellate Division on August 13, 1990 and December 31, 1990, respectively. In April, 1991 Respondents brought on the instant motion seeking to purge the contempt or alternatively to have the jail sentence modified. The case was set down for hearing and was heard on July 23, 30, August 21, 28 and November 20, 1991. On the petitioner's continual objection to the hearing and the evidence heard the Court suspended the fact finding in favor of addressing the questions of law.
Counsel for the parties have framed the issue herein to be whether respondent may move to purge a finding of criminal contempt where the evidentiary standard was beyond a reasonable doubt and the trial court's determination has been affirmed by the Appellate Term. Petitioner argues that the trial court has no ability to purge criminal contempt and that it cannot entertain respondents' motion since the appellate court has affirmed its earlier determination. Respondents contend that the trial court may, under the law and the law of the case, both entertain the motion and allow respondents to prove that his actions have been sufficient to purge the criminal contempt. In the alternative, respondents argue that if this Court may not change its finding of criminal contempt it can, nonetheless, change the sentence of incarceration.
Notwithstanding their several attempts to vacate this Court's finding and sentence, respondents do not now challenge the June 23, 1989 orders, herein. 3 Respondents seek to be relieved of the adjudication of criminal contempt. 4 Both petitioner and respondents take support for their position from People v. Leone, 44 N.Y.2d 315, 405 N.Y.S.2d 642, 376 N.E.2d 1287 (1978). The petitioner would have this Court equate a proceeding brought pursuant to the Judiciary Law to one brought pursuant to the Penal Law since the respondents were given notice and an opportunity to make a defense. The recognition of such an analogy would require finding that "... Purging of the contempt, therefore, is not permissible ..." People v. Leone at 318, 405 N.Y.S.2d 642, 376 N.E.2d 1287. Respondents, on the other hand, urge the position that Leone clearly articulates a statement that all forms of contempt not prosecuted in a Criminal Court by indictment permit a showing of conduct sufficient to purge the contemnor.
The Court in Leone considered the crime of contempt distinct from summary contempt, both civil and criminal. Implicit in the opinion of the majority and in the concurring opinion is the recognition of all proceedings brought under the Judiciary Law to be summary contempt. The majority notes: "Not to be confused with the crime of contempt, as defined in the Penal Law, is summary contempt, either civil or criminal." Leone at 317, 405 N.Y.S.2d 642, 376 N.E.2d 1287. Emphasis added. The Judges further stated:
People v. Leone at 318, 405 N.Y.S.2d 642, 376 N.E.2d 1287.
Respondents are further supported in their position by the Court in Matter of Ferrara v. Hynes, 63 A.D.2d 675, 404 N.Y.S.2d 674 (2d Dept.1978), where the Court ratified the correctness of holding the appellant in contempt for his failure to comply with a validly issued subpoena but vacated the adjudication because he subsequently did appear and testified before the grand jury, thereby purging himself of the contempt.
More recently, in Midlarsky v. D'Urso, 133 A.D.2d 616, 519 N.Y.S.2d 724 (2d Dept.1987), the Court stated:
"The court is vested with broad discretion in determining appropriate conditions upon which a contemnor may purge the contempt (see, Matter of Nestler v. Nestler, 125 AD2d 836, 837 [510 N.Y.S.2d 32 (3rd Dept.1986) ]; Busch v. Berg, 52 AD2d 1082, 1083 [384 N.Y.S.2d 301 (4th Dept.1976) ]; Matter of Storm, 28 AD2d 290, 292-293 [284 N.Y.S.2d 755 (1st Dept.1967) ]." 133 A.D.2d 616, 617, 519 N.Y.S.2d 724.
This Court concludes that it has the authority to conduct a purge hearing where criminal contempt is founded upon the Judiciary Law and not the Penal Law. 5
The Procedural history is dispositive of this inquiry. The orders, judgments and warrants of commitment were entered in these proceedings on June 28, 1989. Thereafter, the Appellate Term affirmed and leave to appeal to the Appellate Division, Second Department was denied by both the Appellate Term (June, 1990) and the Appellate Division (August, 1990). Reargument for leave to appeal was denied by the Appellate Division in December, 1990. Respondents moved by orders to show cause for the purge of civil and criminal contempt. 6
What effect would the rehearing by the trial court of a matter adjudicated on its merits by the Appellate Term and denied leave to appeal by the Appellate Division? The Court of Appeals held in Sheridan v. Andrews, 80 N.Y. 648 (1880), that a lower court is without power to review its decision after review and affirmance by the higher court. More recently, the Appellate Term affirmed Blumenstock v. Weissman, 47 Misc.2d 266, 262 N.Y.S.2d 405 (Westchester Co.Ct.1965), wherein Judge Trainor quoted: "That the surrogate or the Special or Trial Term is without authority to vacate or modify, or even correct its decree or order after affirmance by the Appellate Division ..." In re Balfe's Will, 174 Misc. 279, 283, 20 N.Y.S.2d 474 (1940). The court in Blumenstock noted, as have many before it, that "the reason is obvious for '[w]ere it otherwise, there would be no such thing as a final end to litigation, and suits and decrees, on the same subject matter, would be multiplied so as to become embarrassing, inconsistent, and oppressive.' " Blumenstock, 47 Misc.2d at 268, 262 N.Y.S.2d 405.
This Court has no authority to hear the motion to purge a finding of contempt affirmed by its superior courts. There remains the prayer for modification of the sentence.
Upon cursory reflection after the above conclusion, it would appear that this query could be easily answered. But the truth is to the contrary. It appears to be clear that, in general, a court loses the authority "to vacate or modify, or even correct, its decree or order after affirmance by the Appellate Division ..." In re Balfe's Will, 174 Misc. 279, 283, 20 N.Y.S.2d 474. Yet there seems to be a chiseled niche, yet in formation, for the embodiment of a modification like that which respondents seek. The court of original jurisdiction has only limited authority to review a sentence, as was noted in People v. Tavano, 67 A.D.2d 1090, 415 N.Y.S.2d 161 (4th Dept.1979). The Court in Tavano, cited Hennessy v. Cunningham, 57 A.D.2d 298, 395 N.Y.S.2d 320 (4th Dept.1977). The Hennessy Court quoted the Court of Appeals in People ex rel. Woodin v. Ottaway, 247 N.Y. 493, 495, 161 N.E. 157 (1928). In its assessment of the authority to review a sentence:
... the jurisdiction of the court of original jurisdiction [is not] lost by appeal to the Appellate Division and affirmance by that court ... before the application for a stay was made ( [Woodin] id. at 496, 161 N.E. at 158). Finally, it concluded, that a judgment of affirmance by it or the ...
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