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

• Decision Date: 23 July 1987
• Parties: DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF the CITY OF NEW YORK, Petitioner, v. William GOTTLIEB, Respondent. DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF the CITY OF NEW YORK, Petitioner, v. Chester MILLER, 24 W. 132 St. Equities, Inc., Andonis Morfesis, Respondents. -L
• Court: New York City Court

Page 575

518 N.Y.S.2d 575

136 Misc.2d 370

DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF the

CITY OF NEW YORK, Petitioner, v. William GOTTLIEB, Respondent.

DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF the

CITY OF NEW YORK, Petitioner, v. Chester MILLER, 24 W. 132 St. Equities, Inc., Andonis

Morfesis, Respondents.

Civil Court of the City of New York New York County, Part 18-L.

July 23, 1987.

Abbott Gorin, Peter M. Nadler, of counsel; Bruce Kramer, New York City, for petitioner.

Michael Stepper, of counsel; Jacobs, Sieratzki & Zinns, New York City, for respondent Gottlieb.

Claude Castro, of counsel; Castro & Karten, New York City, for respondents Miller et al.

LEWIS R. FRIEDMAN, Judge.

These cases present the same question, which has not been definitively answered in the reported cases: may a party move for summary judgment to impose criminal and civil contempt penalties for disobedience of a court order. In both cases the court issued orders requiring the respondents to remove certain violations of the Housing Maintenance Code. Thereafter, petitioner commenced civil and criminal contempt proceedings. Petitioner, relying primarily on inspection reports which show that the violations remained, made motions in each case for summary judgment. ¹

The Propriety of Summary Judgment

Analytically, civil and criminal contempt must be treated separately. The Court of Appeals in Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 582-3, 466 N.Y.S.2d 279, 453 N.E.2d 508, emphasized the distinction between two different remedies.

"Civil contempt has as its aim the vindication of a private right of a party to litigation and any penalty imposed upon the contemnor is designed to compensate the injured private party for the loss of or interference with that right (State of New York v. Unique Ideas, 44 NY 2d 345 [405 N.Y.S.2d 656, 376 N.E.2d 1301] ). Criminal contempt, on the other hand, involves vindication of an offense against public justice and is utilized to protect the dignity of the judicial system and to compel respect for its mandates (King v. Barnes, 113 NY 476 )."

The rules applicable to summary judgment motions are well established. If there are no genuine issues of material fact, summary judgment must be granted. (CPLR 3212[b]; Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 68 N.Y.2d 320; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718.) Once a movant has established a prima facie basis for summary judgment the burden is on the party opposing such relief to set forth "evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." (Alvarez v. Prospect Hospital, supra.) The nature of a civil contempt proceeding does not require a different rule.

Civil Contempt

The issues in a civil contempt proceeding are: (1) that a lawful order of the court was in effect; (2) that there was a clear unequivocal mandate; (3) that the respondent had knowledge of the order; (4) that there is proof to a reasonable certainty that the order has been disobeyed; and (5) that the rights of a party were prejudiced. (Matter of McCormick v. Axelrod, supra). These are ordinary questions of fact with a usual burden of proof which can be resolved in the same manner as any other facts. A review of the cases reveals no appellate authority precluding summary relief in civil contempt proceedings.

Respondents rely on a series of cases which suggest that summary judgment may not be granted in contempt cases. None is dispositive. Several apply only to criminal contempt. (State Univ. of New York v. Denton, 35 A.D.2d 176, 180-181, 316 N.Y.S.2d 297 [4th Dept 1970] and Ingraham v. Maurer, 39 A.D.2d 258, 260, 334 N.Y.S.2d 19 [3rd Dept 1972] ). Further, the relevant language in both of those cases is dictum. In Denton the "holding" is described as a "comment" "[f]or guidance of the court and parties in future criminal contempt proceedings arising out of civil actions". (35 A.D.2d at 180, 334 N.Y.S.2d 19). In Ingraham the "holding", that a general denial by counsel is sufficient to require a trial, is followed by reference to the detailed factual affidavits submitted. In Guardian Life Ins. of Am. v. Myers, 99 A.D.2d 1030, 473 N.Y.S.2d 823 [1st Dept 1984], the court "note[d] in passing, however, the inappropriateness of coupling a motion to punish for contempt with a motion for summary judgment." This court's review of the record before the Appellate Division revealed that proceeding involved an omnibus motion for summary judgment on the declaratory judgment action as well as the unrelated contempt of the preliminary injunction.

The summary disposition of a civil contempt proceeding where there are no disputed facts has long been permitted. (Holahan v. Holahan, 234 A.D. 572, 573, 255 N.Y.S. 693 [4th Dept 1932]; compare e.g., Shkolnik v. Shkolnik, 41 A.D.2d 523, 340 N.Y.S.2d 70 [1st Dept.1973] and Larotondo v. Larotondo, 285 App.Div. 899, 137 N.Y.S.2d 866 [2nd Dept.1955] holding the failure to order a hearing on disputed facts to require reversal). The Appellate Term, First Department, has apparently endorsed the practice of granting summary relief in a civil contempt proceeding. In Santana v. 144th St. Holding Corp. (NYLJ May 14, 1984, p. 13, col. 3), the court, relying on Friendly Ice Cream Corp. v. Great Eastern Mall, Inc., 51 A.D.2d 883, 381 N.Y.S.2d 368 [4th Dept.1976], noted that the respondents in their papers "failed to rebut or effectively deny the allegations of the application, or allege any excuse for noncompliance with the court's order. Accordingly a hearing was not required." That statement, although dictum since a hearing was actually held, supports petitioners' motion to treat civil contempt proceedings in the same manner as any other special proceeding.

There are a number of cases which have held that the possibility of imprisonment for contempt is sufficient to invoke additional procedural rights. For example, in People ex rel. Lobenthal v. Koehler, 129 A.D.2d 28, 516 N.Y.S.2d 928 [1st Dept.1987] ), the First Department recently found that the constitutional right to appointed counsel applied to applications for contempt, whether denominated civil or criminal, since respondent "was subject to possible imprisonment". (Hickland v. Hickland, 56 A.D.2d 978, 980, 393 N.Y.S.2d 192 [3rd Dept.1977]; Matter of Williams v Williams, 91 A.D.2d 1044, 458 N.Y.S.2d 641 [2nd Dept.1983]; Lassiter v. Department of Social Services, 452 U.S. 18, 25, 101 S.Ct. 2153, 2158, 68 L.Ed.2d 640; In re Di Bella, 518 F.2d 955, 959 [2nd Cir.1975] ). The Supreme Court has previously held that the possibility of a coercive contempt sentence takes a civil contempt case out of the criminal context for determining the manner of trial. (Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622).

This court concludes that the well established historical difference in the manner of trial of civil and criminal contempts (Department of Housing Pres. & Dev. v. Chance Equities, 135 Misc.2d 375, 515 N.Y.S.2d 709) authorizes the treatment of civil contempt as an ordinary civil case. The policy encouraging the use of summary dispositions, that was recently rearticulated in Alvarez v. Prospect Hospital, supra, reserves the resources of the courts for those cases where there are actual issues to be resolved.

The United States Court of Appeals for the Second Circuit has continually upheld, as complying with federal constitutional due process standards, the New York rule that requires hearings in civil and criminal contempt proceedings only where there are disputed issues of material fact. (Agur v. Wilson, 498 F.2d 961, 965 [2nd Cir.], cert. denied 419 U.S. 1072, 95 S.Ct. 661, 42 L.Ed.2d 669 (1974); Sassower v. Sheriff of Westchester Co., 824 F.2d 184 [2 nd Cir.1987] ).

This court finds that factual questions presented on a civil contempt application may be resolved summarily either by summary judgment motion or by application of CPLR 409 and 410. That procedure gives the respondent an adequate opportunity for the "hearing appropriate to the nature of the case" which is guaranteed by the due process clause of the federal constitution. (United States v. Raddatz, 447 U.S. 667, 677, 100 S.Ct. 2406, 2413, 65 L.Ed.2d 424; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 657, 94 L.Ed. 865; Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18).

Criminal Contempt

Criminal contempt presents different issues. The Court of Appeals has held that "the element which serves to elevate a contempt from civil to criminal is the level of willfulness with which the conduct is carried out". (Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 583, 466 N.Y.S.2d 279, 453 N.E.2d 508 supra; Sentry Armored Courier Corp. v. New York City Off-Track Betting Corp., 75 A.D.2d 344, 429 N.Y.S.2d 902 [1st Dept.1980]; Matter of Murray, 98 A.D.2d 93, 469 N.Y.S.2d 747 [1st Dept.1983]; Yacht Shares, Ltd. v. Knutson's Marina, Inc., 112 A.D.2d 419, 492 N.Y.S.2d 79 [2nd Dept.1985].) The concept of willfulness requires a determination beyond a reasonable doubt rather than to a reasonable certainty (N.A. Dev. Co. v. Jones, 99 A.D.2d 238, 240-241, 472 N.Y.S.2d 363 [1st Dept.1984]; Vail v. Quinlan, 406 F.Supp. 951, 960 (S.D.N.Y.1976) rev'd on other grounds sub nom Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); County of Rockland v. Civil Service Employees Assn, 62 N.Y.2d 11, 16-17, 475 N.Y.S.2d 817, 464 N.E.2d 121).

The New York Court of Appeals has held that a criminal contempt case is equivalent to a criminal case. (Matter of Colombo, 31 N.Y.2d 947, 341 N.Y.S.2d 97, 293 N.E.2d 247; cf. Colombo v. New York, 405 U.S. 9, 10-11, 92 S.Ct. 756, 756-57, 30 L.Ed.2d 762). This state has long held that the accused in a criminal contempt case has a right to be heard after notice and the full panoply...