Department of Housing Preservation and Development of City of New York v. Chance Equities, Inc.

• Decision Date: 29 April 1987
• Citation: 135 Misc.2d 375,515 N.Y.S.2d 709
• Parties: DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF the CITY OF NEW YORK, Petitioner, v. CHANCE EQUITIES, INC., Maria Morfesis, Tony Morfesis, and Andonis Morfesis, Respondents. -L
• Court: New York City Court

Page 709

515 N.Y.S.2d 709

135 Misc.2d 375

DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF the

CITY OF NEW YORK, Petitioner, v. CHANCE EQUITIES, INC., Maria Morfesis, Tony Morfesis, and Andonis Morfesis, Respondents.

Civil Court of the City of New York,

New York County, Part 18-L.

April 29, 1987.

Claude Castro, Susan M. Karten, Perry S. Reich, of counsel, Castro & Karten, New York City, for respondents.

Patricia Einbender, of counsel, Bruce Kramer, New York City, for petitioner.

LEWIS R. FRIEDMAN, Judge.

Trial by jury is a fundamental right under the state and federal constitutions. Contempt is the fundamental right of the court to protect its process. "It has always been one of the attributes--one of the powers necessarily incident to a court of justice--that it should have this power of vindicating its dignity, of enforcing its orders, of protecting itself from insult, without the necessity of calling upon a jury to assist it in the exercise of this power." Eilenbecker v. District Court of Plymouth County, Iowa, 134 U.S. 31, 36, 10 S.Ct. 424, 426, 33 L.Ed. 801, 803 (1890). These motions raise questions of the conflict in those principles that have not been answered in the modern cases in New York.

These are four separate proceedings brought against the same respondents in which the petitioner seeks civil and criminal contempt sanctions. In each case the court had previously entered orders on consent pursuant to the Housing Maintenance Code requiring the respondents to remove violations and provide heat and hot water as mandated by law. The respondents have filed a jury demand in each case. Petitioner has moved for consolidation and to strike the jury demands.

Consolidation

Petitioner seeks consolidation of these proceedings for a joint trial under CPLR 602(a) on the ground that a single consent order and the identical parties are involved in all four cases; there are, petitioner asserts, "common question[s] of law or fact". The law is settled that consolidation is favored when the interests of judicial economy can be served without prejudice to the parties. See, e.g., Import Alley of Mid-Island, Inc. v. Mid-Island Shopping Plaza, Inc., 103 A.D.2d 797, 477 N.Y.S.2d 675; Mideal Homes Corp. v. L & C Concrete Work, Inc., 90 A.D.2d 789, 455 N.Y.S.2d 394.

In the cases at bar each case involves repairs and conditions at different premises. Therefore, the predominant issues in both the petitioner's and respondents cases at trial will relate to the individual buildings and not to the original court order. The proof cannot reasonably be expected to overlap. There is little likelihood of any time savings from a joint trial; the likelihood of confusion of factual and legal issues is great. Consolidation is, therefore, not warranted. Aluminum Mill Supply Corp. v. Skyview Metal, Inc., 117 A.D.2d 765, 767-768, 499 N.Y.S.2d 98; J M Mechanical Corp. v. Washington Fed. Sav. & Loan Assn., 80 A.D.2d 884, 886, 437 N.Y.S.2d 127. The motion to consolidate is denied.

Trial by Jury under New York Law

Although respondents assert a federal constitutional right to a jury trial, analysis logically starts with the question, not briefed by any party, of whether a jury trial is authorized under state law. The answer to that question determines whether the federal issue need be addressed at all. State statutes and constitutions determine the basic parameters of rights. "As is well known, federal preservation of civil liberties is a minimum, which the states may surpass so long as there is no clash with federal law." Brennan, "The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights," 61 NYU L Rev 535, 548-550 [1986]; Bellacosa, "A New York State Constitution Touch of Class," 59 NYStBarJ 14, 17 [April 1987]; People v. Class, 67 N.Y.2d 431, 503 N.Y.S.2d 313, 494 N.E.2d 444; People v. P.J. Video, Inc., 68 N.Y.2d 296, 508 N.Y.S.2d 907, 501 N.E.2d 556.

The general statutory right to trial by jury is CPLR 4101: "In the following actions, the issues of fact shall be tried by a jury unless a jury trial is waived ...: 3. any other action in which a party is entitled by the constitution or by express provision of law to a trial by jury." Clearly the Judiciary Law does not provide for the manner of trial of criminal [§ 750] or civil [§ 753] contempts. Prior contem statutes also fail to describe the manner of trial. See e.g. N.Y.Laws, 1801 (1887 ed.), at 54; 2 N.Y.Rev.Stat., 1828-1835 (1836 ed.), at 207; Revised Statutes of New York (part 3, title 13, § 20 as amended L. 1843, ch. 9). It appears that under the Code of Civil Procedure as adopted in 1880 the court was authorized to render a final order based upon the papers without a jury--"[u]pon the original affidavits, the answers [to interrogatories], and subsequent proofs, the court, judge or referee must determine whether the accused has committed the offense charged". Code Civ.Pro. ch. xvii, title 3, § 2281, L.1880, ch. 178. That language of the Code was continued in Judiciary Law § 769. L.1909, ch. 35, repealed L.1977, ch. 437. The 1977 amendment merely uses the phrase "[i]f it is determined that the accused has committed the offense charged" the court shall enter an appropriate order. Judic.L. § 770, as added by L.1977, ch. 437.

Since there is no statutory answer, the question turns on the state constitution. The provision which, with minor changes, has been in all constitutions since colonial times provides: "Trial by jury, in all cases in which it hath heretofore been used in the colony of New York, shall be established and remain inviolate" (N.Y. Const. [1777], art. XLI; see N.Y. Const. [1821], art. VII, § 2; N.Y. Const. [1846], art. I, § 2; N.Y. Const. [1894], art. I § 2; N.Y. Const. [1938], art. I, § 2); see Cowper Co. v. Buffalo Hotel, 99 A.D.2d 19, 471 N.Y.S.2d 913 (4th Dept 1984).

It is well established that in criminal cases, jury trials are only mandated by the state constitution for crimes punishable by imprisonment in excess of one year. Hogan v. Rosenberg, 24 N.Y.2d 207, 214-216, 299 N.Y.S.2d 424, 247 N.E.2d 260, rev'd sub nom. Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437; People v. Bellinger, 269 N.Y. 265, 270-271, 199 N.E. 213; People ex rel. Comaford v. Dutcher, 83 N.Y. 240; People ex rel. Murray v. Justices, 74 N.Y. 406. Even if contempts under the Judiciary Law were treated as crimes (see People v. Colombo, 31 N.Y.2d 947, 341 N.Y.S.2d 97, 293 N.E.2d 247) no jury is required under the state constitution. Under state statutes no jury trial would be required since criminal contempt in the second degree is a class A misdemeanor punishable by six months in prison. See Penal L. §§ 70.15(1)(a), (b), 215.50; CPL § 340.40(2); see People v. Cruz, 129 Misc 2d 235.

The English practice during the colonial period aids in understanding the 1777 constitution of New York; English common law was specifically continued in New York. N.Y. Const. [1777], art. XXXV. English principles of equity as well as the doctrines of the common law were both incorporated. 1 Kent, Commentaries on American Law (7th ed. 1851) 336. In England the trial of contempts without a jury was one of the earliest attributes of the Court of Chancery's equitable powers. 1 Holdsworth, History of English Law (7th ed. 1956) 458-469. By the time of statehood the English law had apparently developed to the point that all courts, both in law and equity, tried contempts, committed in their presence or by disobedience to their orders, in a summary fashion without a jury. "A power therefore in the supreme courts of justice to suppress such contempts, by an immediate attachment of the offender, results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal. Accordingly we find it actually exercised, as early as the annals of our law extend." The accused responded to interrogatories and judgment followed. 4 Blackstone, Commentaries on the Laws of England (15th ed. 1809) (Christians ed.) 280-288 ^*; see Earl of Shaftsbury's Case, 2 State Trials 615; Crosby's Case, 3 Wils. 188, 2 Bl.Rep. 754. The New York colonial experience had accepted the concept of non-jury contempt trials as early as 1683 when the Charter of Liberties and Privileges, reprinted in 1 Lincoln, Constitutional History of New York, 1609-1822, 101 (1906), specifically exempted "Contempt of Courts of Judicature" from the first legislature's demands for trial by jury.

The practice of non-jury summary trials was followed in the earliest period of statehood. Thus, in In re Yates, 4 Johns. 317, 371-4 (1809), the en banc Supreme Court in an opinion by Chief Justice Kent, upheld the decision by the chancery court to hold Yates in contempt after a non-jury proceeding at which it was established that he had forged the name of a solicitor to a pleading and had illegally acted as a solicitor. In the Court of Errors, Senator Platt, relying on Blackstone, held: "The right of punishing for contempts by summary conviction, is inherent in all courts of justice and legislative assemblies; and is essential for their protection and existence.... A contempt is an offense against the court, as an organ of public justice, and the court can rightfully punish it on summary conviction...." Yates v. Lansing, 9 Johns. 395, 416-417 (1811) (emphasis in original).

The more recent cases that mention the subject at all assume without citation or discussion that there was no right to a trial by jury. See Snow v. Shreffler, 148 A.D. 422, 432, 132 N.Y.S. 895 (4th Dept 1911) ("the person charged is convicted and imprisoned without a jury trial"); Egan v. Lynch, 49 Super.Ct. (Jones & Sp) 454 (1883); Soprinsky v. Tolman, 160 Misc. 381, 382, 289 N.Y.S. 1110 (City Ct.N.Y.1936).

The general assumption that jury trials were not available for contempts at common law was reiterated by the Supreme Court in Eilenbecker v. District Court of Plymouth County, Iowa,...