Department of Housing Preservation and Development of City of New York v. Skydell

• Decision Date: 09 June 1994
• Citation: 161 Misc.2d 647,616 N.Y.S.2d 565
• Parties: DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF the CITY OF NEW YORK, Petitioner-Respondent, v. Harry SKYDELL, Respondent-Appellant, and 334-338 96 Associates, Respondent.
• Court: New York Supreme Court

Page 565

616 N.Y.S.2d 565

161 Misc.2d 647

DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF the

CITY OF NEW YORK, Petitioner-Respondent, v. Harry SKYDELL, Respondent-Appellant, and 334-338 96 Associates, Respondent.

Supreme Court, Appellate Term,

First Department.

June 9, 1994.

Zane & Rudofsky, New York City (Edward S. Rudofsky, Jordana Skwiersky and William Goodstein, of counsel), for appellant.

Saralee E. Evans, Janessa C. Nisley and Jerald Horowitz, New York City, for respondent.

Before PARNESS, J.P., and McCOOE and GLEN, JJ.

Appeal from (1) an order and judgment (one paper) of the Civil Court of the City of New York, New York County (Jerald R. Klein, J.), entered August 12, 1992, which found respondent in civil and criminal contempt for failure to supply heat and hot water to certain premises, and imposed a fine and incarceration, and (2) three orders of that court (Jerald R. Klein, J.), entered October 8, 1992, which (a) denied a motion by respondent to set aside that order and judgment, (b) granted a motion by petitioner to quash a subpoena, (c) denied a motion by respondent to be released from incarceration, and (d) denied a motion by respondent to revoke the sentence.

PER CURIAM:

Order and judgment entered August 12, 1992 (Jerald R. Klein, J.) affirmed, with $10 costs, without prejudice to an application in the court below by respondent, if so advised, to vacate the commitment for civil contempt.

Orders entered October 8, 1992 (Jerald R. Klein, J.) affirmed, with $10 costs.

After a trial in this proceeding, at which respondent Harry Skydell, although represented by counsel, declined to testify, the Housing Judge held respondent in civil and criminal contempt of various orders requiring him to provide heat and hot water to the subject premises. The court denied three separate motions to vacate and set aside the finding of contempt. This court granted a stay pending appeal.

Respondent Harry Skydell is both an attorney and a sophisticated real estate developer (Skydell v. Gelb, 177 A.D.2d 437, 576 N.Y.S.2d 281). The respondent partnership, of which respondent Skydell is a general partner, acquired a 30 unit residential apartment building at 334 East 96th Street for the purpose of demolishing the building and developing the property. Although the property was never developed, as of July, 1992, only seven tenants remained in the building.

On January 8, 1992, and April 10, 1992, following proceedings arising from respondents' failure to provide heat and hot water, the respondents agreed to provide these services in so-ordered stipulations. Respondent Skydell in fact agreed to "personally" pay a $1000 fine to settle the claim for civil penalties in connection with the January 8 order.

By order to show cause dated May 21, 1992, petitioner moved to hold respondents in civil and criminal contempt for their failure to provide heat and hot water on seven dates between January 31 and May 19, 1992. Petitioner, on its direct case, introduced into evidence various inspection reports, as well as the testimony of certain tenants, who described the building as having been without heat or hot water for weeks at a time. Respondents' case was premised primarily on the testimony of Jack Irushalmi, the managing agent, who testified that fuel oil was delivered to the premises during the time of the alleged violations, but that the partnership's lack of funds made it difficult to obtain fuel or maintain the boiler in operating condition. In this regard, respondent Skydell had given Irushalmi checks, sometimes from entities other than the respondent partnership, to pay for fuel deliveries. The witness testified that the respondent partnership had filed a voluntary Chapter 11 bankruptcy petition on April 29, 1991, converted to a Chapter 7 proceeding on March 24, 1992, by order of the bankruptcy court.

On this evidence the court found both respondents in civil contempt. The court further found that since the respondent partnership had filed for bankruptcy, its violation of the court's orders could not be found willful. With respect to respondent Skydell, however, the court found that there had been no evidence that he was personally unable to expend the necessary funds to comply with the court's prior orders.

Respondent now contends that he was entitled to a post-trial hearing, in connection with his post-trial motions, on the issues of his alleged loss of legal control of the premises due to the pendency of the partnership's bankruptcy proceeding, as well as his personal financial inability...