Gregori v. Ace 318 Corp.

• Decision Date: 11 March 1987
• Citation: 134 Misc.2d 871,513 N.Y.S.2d 620
• Parties: William GREGORI, Charles Richardson, Fred Prendergass, Reginald Prestwidge, Hector Dee Vasquez, Bobbie Willis, Gladys Colon, Edith Thomas, Walter Johnson, West Galloway, Allen, Womack and Eduardo Davila, Petitioners, v. ACE 318 CORP., Rose Hiller, Steven E. Hiller, and Department of Housing Preservation and Development of the City of New York, Respondents. -L
• Court: New York City Court

Page 620

513 N.Y.S.2d 620

134 Misc.2d 871

William GREGORI, Charles Richardson, Fred Prendergass, Reginald Prestwidge, Hector Dee Vasquez, Bobbie Willis, Gladys Colon, Edith Thomas, Walter Johnson, West Galloway, Allen, Womack and Eduardo Davila, Petitioners, v. ACE 318 CORP., Rose Hiller, Steven E. Hiller, and Department

of Housing Preservation and Development of the

City of New York, Respondents.

Civil Court of the City of New York,

New York County, Part 18-L.

March 11, 1987.

Susan M. Cohen, of counsel, Wayne G. Hawley, MFY Legal Services, Inc., New York City, for petitioners.

Steven E. Hiller, New York City, for respondents.

Abbot Gorin, of counsel, Bruce Kramer, New York City, for Department of Housing Preservation & Development.

LEWIS R. FRIEDMAN, Judge.

It has long been established that an offense against the dignity of the court "should not go unpunished, if for no other reason than to deter others from the commission of like acts." In re Hopper, 9 Misc. 171, 29 N.Y.S. 745, aff'd 145 N.Y. 605, 40 N.E. 164 (1894). This case presents important questions, not previously addressed in the reported cases, on the punishment for civil and criminal contempt.

This proceeding was commenced by petitioners, residents of 168 East 24th Street (the "premises"), for an order pursuant to Housing Maintenance Code § D26-51.01(h) directing the owners of the premises to remove certain violations and "conditions constituting violations". The respondents are the owning corporation, its principal, Rose Hiller, and her son, Steven Hiller, an attorney with offices at the premises who is involved in its operation, (collectively the "owners") and the Department of Housing Preservation and Development ("DHPD"). The premises is a single room occupancy ("SRO") rooming house.

The parties entered into four "interim" consent orders dated October 18, 1985 (2 orders), November 15, 1985 and November 27, 1985, each of which set repair schedules, provided for increased security, and set forth standards for heat and hot water, cleaning and general maintenance. All work was to be completed no later than December 6, 1985.

The Contempt Hearing

Petitioners commenced the instant proceeding contending that the repairs done and the security provided were not in accord with the orders and that numerous specific agreements had been violated. Petitioners seek civil and criminal contempt sanctions. The owners' defense was that extensive repairs had been performed at the premises. The court, which had visited the premises with counsel for all parties prior to the signing of the last consent orders, conducted an extensive trial of the issues. There is no doubt whatever that the work was not performed as required by the court orders. Indeed, since the owners do not seriously contend that they are in compliance with the terms of the repair orders, the court need not summarize the testimony at length. Almost no work was accomplished before this contempt proceeding was commenced; much of the repair work was poorly done and had to be redone.

The owners attempted to establish that they had difficulty in gaining access to a few rooms, in part because the petitione would not move to other rooms during the repairs. The court credits the testimony of the tenants and concludes that there was no good faith effort to gain access to the rooms on proper notice.

The security service provided violated the court orders and interfered with petitioners' rights to enter the building and their right to have visitors unmolested by the "guards". The complete failure to do the mandated repairs according to the schedule and the creation of new unsafe conditions establishes beyond question the willfulness of the owners' conduct. The performance of many repairs which were not required by the orders at the expense of the mandated items further supports that conclusion. There is no doubt that the acts of the respondents have delayed, hindered, impaired and impeded the rights of the petitioners in this proceeding.

The court finds, beyond a reasonable doubt, that the respondents are each guilty of both criminal and civil contempt for their willful disobedience of the court's orders of October 18, November 15 and November 27, 1985. See Judic.L. § 750, subd. A, par. 3; Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 583, 466 N.Y.S.2d 279, 453 N.E.2d 508.

The Appropriate Penalty

Civil Contempt

The parties agree that the petitioners have not proven any actual damages as a result of the contempt; therefore, their recovery of a fine is limited. Judiciary Law Section 773 provides, in pertinent part:

Where it is not shown that such an actual loss or injury has been caused, a fine may be imposed, not exceeding the amount of the complainant's costs and expenses, and two hundred and fifty dollars in addition thereto, and must be collected and paid, in like manner.

The reported decisions do not provide clear guidance as to the manner of computing the fine, that is whether separate fines are payable for each act of contempt and whether the same amounts are due to each petitioner. The distinction between civil and criminal contempt provides a starting point for analysis. The Court of Appeals recently held that a civil contempt penalty is imposed "to compensate the injured private party for the loss of or interference with that right (State of New York v. Unique Ideas, 44 N.Y.2d 345 [405 N.Y.S.2d 656, 376 N.E.2d 1301] )." Matter of McCormick v. Axelrod, supra at 583, 466 N.Y.S.2d 279, 453 L.Ed.2d 508. Thus, notwithstanding the willfulness of the acts, a civil contempt fine is limited to damages "sufficient to indemnify the aggrieved party". The courts have long held that in the absence of proof to the contrary "the actual damages must be regarded as not exceeding two hundred and fifty dollars." Socialistic Co-operative Pub. Assn. v. Kuhn, 164 N.Y. 473, 475, 58 N.E. 649 (1900). (Indeed, the $250 contempt penalty first was set in 1829. See 2 N.Y.Rev.Stat., 1828-35 (1836 ed.), at 207.)

The Appellate Term in this Department has held that multiple $250 penalties cannot be imposed where there is no proof of actual damages. The court has refused to allow multiplication of a fine by the number of separate housing code violations to preclude "awarding exemplary damages in a situation where compensatory damages have not been proven--a result at odds with the concept of civil contempt." S.I. Realty Holding Corp. v. Harris, NYLJ, Feb. 14, 1986, p. 13, col. 1; Department of Housing Pres. & Dev. v. Swett, NYLJ, June 11, 1984, p. 7, col. 3. It is not "compensatory" to multiply the fine by each of the four orders; similarly, it is not "compensatory" to multiply the fine by the number of sections of the orders which were violated. See State of New York v. Unique Ideas, 44 N.Y.2d 345, 350, 405 N.Y.S.2d 656, 376 N.E.2d 1301. There is no doubt that the acts of the owners constitute a single breach of the court's orders requiring repairs. See People v. Chestnut, 26 N.Y.2d 481, 491-2, 311 N.Y.S.2d 853, 260 N.E.2d 501; People v. Riela, 7 N.Y.2d 571, 576, 200 N.Y.S.2d 43, 166 N.E.2d 840.

While the concept that $250 represents limited compensatory damages might lead to the conclusion that a separate $250 fine should be paid to each injured party (Santana v. 144th St. Holding Corp., NYLJ May 14, 1984, p. 13, col. 3 [App Term, 1st Dept] ), the statutory language leads to the opposite result. Judiciary Law Section 773 provides that in the case of proof of actual damages, "a fine sufficient to indemnify the aggrieved party", must be imposed; the emphasis is on the "aggrieved party". Where no actual damages are shown, the fine to be imposed may not exceed expenses "and two hundred and fifty dollars in addition thereto"; thus the total added fine may not exceed $250. That result is consistent with State of New York v. Unique Ideas, supra, and S.I. Realty Holding Corp. v. Harris, supra, which emphasize that exemplary damages are prohibited under section 773. Accordingly, the court will impose a single $250 fine to be paid to the petitioners by the owners jointly and severally (see Socialistic Co-operative Pub. Assn. v. Kuhn, supra ).

Since petitioners are limited to a $250 fine, they are entitled to recover costs and expenses, including the fees reasonably payable to their attorneys. Judic.L. § 773; see, e.g., Hardwood Dimension & Mouldings Inc. v. Consolidated Edison Co., 77 A.D.2d 644, 430 N.Y.S.2d 380; Ellenberg v. Brach, 88 A.D.2d 899, 902, 450 N.Y.S.2d 589; Matter of Rothko, 84 Misc.2d 830, 886, 379 N.Y.S.2d 923, mod. on other grounds, 56 A.D.2d 499, 392 N.Y.S.2d 870, aff'd 43 N.Y.2d 305, 401 N.Y.S.2d 449, 372 N.E.2d 291.

The court will conduct a hearing to determine the amount of costs and attorneys' fees to be included in the civil contempt fines.

Criminal Contempt

The penalty for criminal contempt is determined by the nature of the offense. "Criminal contempt, ... 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 N.Y. 476, 21 N.E. 182). ...