Loeber v. Teresi

• Decision Date: 10 December 1998
• Citation: 256 A.D.2d 747,681 N.Y.S.2d 416
• Parties: 1998 N.Y. Slip Op. 10,968 In the Matter of Ronald G. LOEBER, Petitioner, v. Joseph C. TERESI, as Justice of the Supreme Court, et al., Respondents. Robert Marini Builder Inc., Respondent, v. Charles J. Rao, Defendant and Third-Party Plaintiff-Respondent; Ronald G. Loeber, Individually and as Proposed Executor/Administrator of the Estate of Conrad Loeber, Deceased, et al., Third-Party Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 416

681 N.Y.S.2d 416

1998 N.Y. Slip Op. 10,968

In the Matter of Ronald G. LOEBER, Petitioner, v. Joseph C. TERESI, as Justice of the Supreme Court, et al.,

Respondents.

Robert Marini Builder Inc., Respondent, v. Charles J. Rao, Defendant and Third-Party Plaintiff-Respondent;

Ronald G. Loeber, Individually and as Proposed

Executor/Administrator of the Estate of Conrad

Loeber, Deceased, et al., Third-Party

Defendants-Appellants.

Supreme Court, Appellate Division Third Department.

Dec. 10, 1998.

Sidney Siller, New York City, for petitioner.

Dennis C. Vacco, Attorney-General (Marlene O. Tuczinski of counsel), Albany, for Honorable Joseph C. Teresi, respondent.

Philip S. Caponera, Albany, for Robert Marini Builder Inc., respondent.

Wein, Young, Fenton & Kelsey (Paul H. Wein of counsel), Albany, for Charles J. Rao, defendant and third-party plaintiff-respondent.

Before MIKOLL, J.P., and CREW, YESAWICH, SPAIN and GRAFFEO, JJ.

SPAIN, Justice.

(1) Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to CPLR 506[b][1] ) to prohibit respondent Joseph C. Teresi from enforcing an order of contempt against petitioner, and (2) appeals (i) from an amended order of the Supreme Court (Teresi, J.), entered December 3, 1997 in Albany County, which, inter alia, granted defendant's motion for a default judgment on the third-party complaint, and (ii) from an order of said court, entered February 17, 1998 in Albany County, which, inter alia, appointed a receiver and ordered the receiver to execute a deed on behalf of third-party defendant Ronald G. Loeber.

In 1991, Conrad Loeber (hereinafter decedent) conveyed his farm located in the Town of Guilderland, Albany County, to defendant, Charles J. Rao. The deed from decedent to defendant reserves the farmhouse, as well as a water easement over the conveyed property. In 1996, defendant sold the parcel to plaintiff, Robert Marini Builder Inc. At that time a defect was noticed in the original 1991 deed to defendant regarding the location of the parcel reserved by decedent; that defect is also set forth in the deed to plaintiff which then commenced this action against defendant seeking a corrective deed. Defendant, thereafter, commenced a third-party action against "Ronald L. Loeber Jr.", individually and as executor/administrator of decedent's estate.

Ronald G. Loeber (hereinafter Loeber), son and heir of decedent, did not serve or file an answer to the third-party complaint but, instead, acting pro se, filed a "notice of intent", a signed document stating his intention to appear and defend the matter and raising jurisdictional issues regarding the third-party summons and complaint, asserting that the named third-party defendant, "Ronald L. Loeber Jr.", does not exist. On November 12, 1997 defendant moved by order to show cause for a default judgment on the third-party complaint based upon the third-party defendant's failure to answer. The day after defendant obtained the order to show cause he served an amended third-party summons and complaint on Loeber which correctly states Loeber's name, sets forth an additional cause of action, seeks additional relief and adds Loeber's sister, Elaine Buckley, as an additional third-party defendant. On November 21, 1997, the return date of the motion for a default judgment, despite Loeber's presence in court and his expressed intention to defend the action (see, Meyer v. A & B Am., 160 A.D.2d 688, 553 N.Y.S.2d 462), Supreme Court rejected his jurisdictional arguments, granted a default judgment to defendant and directed Loeber to execute a corrective deed. ¹

On December 23, 1997 and on two subsequent adjourn dates, Loeber refused to sign a proposed corrective deed, arguing that it extinguished his retained water easement. After repeatedly being ordered by Supreme Court to execute the deed and warned that he would be held in contempt if he did not comply, Loeber continued to refuse to sign the deed. On December 30, 1997 Supreme Court found Loeber in contempt and sentenced him to a jail term of six months. Loeber then initiated this CPLR article 78 proceeding challenging the court's order holding him in contempt. Defendant eventually moved to appoint a receiver to execute the deed; Supreme Court granted the motion, a receiver was appointed and the receiver executed the proposed deed. This court granted a stay in the proceedings and a stay in the execution of the six-month jail sentence and released Loeber, after 45 days of incarceration. Loeber has also appealed from the orders which granted the default judgment and which appointed the receiver to execute the corrective deed.

Initially, we conclude that Loeber's CPLR article 78 proceeding challenging the contempt determination was properly commenced. CPLR 7801(2) states that a CPLR article 78 proceeding cannot be used to challenge a determination "which was made in a civil action or criminal matter unless it is an order summarily punishing a contempt committed in the presence of the court". Here, Loeber was summarily found in civil contempt. The order of commitment, dated December 30, 1997, reflects that the basis for the six-month jail sentence is "Civil Contempt of Court § 755 of Judiciary Law". In further support of our conclusion that this was a summary contempt proceeding, the record reflects that the alleged offensive conduct was committed in the immediate view and presence of the court, there was no motion made to hold Loeber in contempt and there was no separate evidentiary hearing held to determine the contempt issue (see generally, Matter of Katz v. Murtagh, 28 N.Y.2d 234, 321 N.Y.S.2d 104, 269 N.E.2d 816; Matter of Waterfront Commn. of N.Y. Harbor [Lamas], 245 A.D.2d 63, 65, 665 N.Y.S.2d 82). Consequently, a CPLR article 78 proceeding is the proper remedy.

Moving next to the merits of the petition, we conclude that the relief sought by Loeber should be granted. Contempt is a drastic remedy which necessitates strict compliance with procedural requirements.

Every order adjudging a party guilty of a civil contempt must contain three items: (1) a description of the acts which were committed or omitted by the [party] constituting the contempt; (2) a determination of what the [party] should do, or how much he should pay, if anything, in order to purge himself from contempt; and (3) an adjudication that the acts done or omitted impaired the rights of a party to the action (21 N.Y. Jur. 2d, Contempt, § 136, at 523).

(See, Judiciary Law §§ 755, 774[1].) The mandate that a contempt order be reduced to writing is an...