Odimgbe v. Dockery

• Decision Date: 07 February 1992
• Parties: Donatus ODIMGBE, Petitioner, v. Dewey DOCKERY, and Department of Housing, Preservation and Development.
• Court: New York City Court

Page 909

582 N.Y.S.2d 909

153 Misc.2d 584

Donatus ODIMGBE, Petitioner, v. Dewey DOCKERY, and Department of Housing, Preservation and Development.

Civil Court of the City of New York,

Kings County, Trial Term,

Part 14.

Feb. 7, 1992.

Donatus Odimgbe, pro se.

Sara Lee Evans, Eric Epstein of counsel, New York City, for Department of Housing, Preservation and Development.

Brian Ward, Brooklyn, for Dewey Dockery.

GUSTIN L. REICHBACH, Justice.

This is one of at least six different proceedings in the Housing Court and elsewhere between Petitioner and Respondent Dockery. In this action Petitioner, joined by Respondent Department of Housing, Preservation and Development, seeks to have Respondent Dockery held in both criminal and civil contempt under the Judiciary Law, and for an order imposing civil penalties as provided for in the Administrative Code, and for a further order compelling Respondent Dockery to cure claimed continuing violations of the Housing Maintenance Code.

This was a tenant initiated H.P. action brought pursuant to Sec. 27-2115 of the Administrative Code of the City of New York. Commenced by Order to Show Cause, dated September 25, 1990. It resulted, after a hearing in which all parties participated, in an Interim Order, dated October 15, 1990, directing the Respondent to correct three enumerated violations. That Interim Order was superseded by an Order, dated November 26, 1990, based on an Inspection Report of November 19, 1990, which directed Respondent to correct seven enumerated "B" (hazardous) violations.

Prior to the initiation of the instant contempt proceeding, this action had been restored to the calendar twice before for the purpose of assessing civil penalties. Respondent Dockery failed to appear in connection with those proceedings and two default judgments had been entered against him. At the start of the trial of this contempt proceeding, Respondent moved to be relieved of the default judgments previously entered in those proceedings. Those motions are the subject of two other decisions/orders of this Court.

The instant contempt proceeding was initiated by Department of Housing, Preservation and Development and Petitioner on April 18, 1991. Two months later Respondent Dockery illegally evicted Petitioner Odigmbe and his family from the premises. ¹ Trial on this contempt proceeding began December 19, 1991 and was concluded January 16, 1992.

The Trial

At the start of the trial both sides stipulated to the admission into evidence of a number of documents, including two inspection reports dated December 17, 1991 and March 15, 1991. The March 15th report is central in the determination of this case.

Both Mr. and Mrs. Odigmbe testified, he on Petitioner's direct case and she on the rebuttal case. Mr. Dockery testified on his own behalf, as did his wife, Classie Mae Dockery and his brother, Algia Dockery. The story of the two sides stand in sharp contrast with each other. Donatus Odimgbe and his wife Renny Odimgbe both testified that subsequent to the November 26th order to repair and until they were evicted on June 30, 1991, the Respondent performed no repairs whatsoever in the premises. The Dockery family testified that they personally did the repair work in the building and corrected all the violations contained in the November 26, 1990 order during the months of November and December, 1990. Dewey Dockery did not impress the Court as a candid and forthright witness because his testimony was filled with self-serving contradictions. At one point in his testimony he claimed to own a number of buildings; then, at another point he disclaimed ownership. Likewise, he testified that he was the agent responsible for management of these properties, then later testified that he stopped managing the property at issue in this proceeding.

In the swearing contest between the Odimgbes and the Dockerys, the Inspection Report of March 15, 1991 is crucial. While, as discussed below, the Court has substantial reservations with the form and some of the substance of the report, the Court does credit the report's basic accuracy and it substantiates the Odimgbes' version of events and directly contradicts the claims of Respondent.

The Order of November 26, 1990 required the Respondent to correct seven class "B" violations, as contained in an inspection report dated November 19, 1990. The specifics of the report are important in determining what Respondent was required to correct and whether Petitioner has met his burden in establishing Respondent's failure to do so. Those violations were:

1. Illegal Heater. 3 story public hall scuttle closet

2. Replace. Wall outlet cover kitchen 3 story apt. 2

3. Remove vermin. Mice & roaches 3 story apt 2

4. Repair plaster. Walls bathroom 3 story apt 2

5. Repair. Wood floor, private hall 3 story apt 2

6. Replace. Ceiling light fixture 1, 2, & 3 stories public hall

7. Abate the nuisance. Exposed electrical wires ceiling 1, 2, & 3 stories public hall.

The inspection report of March 15, 1991 shows that all the violations except Number 2 remained uncorrected as of that date. ² When confronted with the March 15, 1991 report on cross-examination, Respondent Dockery's only explanation was that "someone must have been messing with the repairs," though according to his own testimony the repairs, which he claims were all done by December, 1990 were all still in place when he retook possession in July, 1991.

Inspector Leland Paul who prepared the Inspection Report of December 17, 1991 was called as a witness. His inspection report indicated that as of December 17, 1991 all the violations had been corrected except for violations 1 and 4. According to the Inspector, Violation 4 had been repaired, but improperly because there were still cracks in the bathroom wall. With regard to Violation 1, Inspector Paul testified on direct that the heater wasn't properly vented, later asserting that it wasn't vented at all and that the fumes posed a danger. He also testified that the heater should not be on the third floor; however, he neither gave an explanation nor cited any provision of the Code that prohibited its placement in this location.

On cross-examination the Inspector testified that the heater was on, that he could see or smell no fumes and that the heater had piping, but he didn't know where it went. The Respondent introduced into evidence photographs of the heater showing a vent pipe going through the ceiling on the top floor of the building, which Respondent testified vented out above the roof. The fact that the inspector failed to try to trace where the piping on the heater was going added to his unimpressive testimony concerning his expertise in this area.

The Law

The Petitioner seeks to have the Respondent held in both criminal and civil contempt pursuant to Sections 750 and 753 of the Judiciary Law and to impose both fines and imprisonment pursuant to Sections 751, 773 and 774 of the Judiciary Law.

Anomalies abound in the area of contempts under the Judiciary Law. While the same act may be punishable as both criminal and civil contempt, Department of Environmental Protection v. Department of Environmental Conservation, 70 N.Y.2d 233, 519 N.Y.S.2d 539, 513 N.E.2d 706 (1987); Larisa F. v. Michael S., 122 Misc.2d 520, 470 N.Y.S.2d 999 (Family Ct.Queens Co.1984), the two types of contempt serve different purposes. Criminal contempt involves offenses against judicial authority and is utilized to protect the integrity of the judicial process and compel respect for its mandates. As an offense against public justice the penalty to be imposed is punitive. Civil contempt arises when the rights of a private individual have been harmed by the contemnor's failure to obey a Court order. Any penalty to be imposed for civil contempt is for the purpose of compensating the injuries of a private party or to coerce compliance. Department of Environmental Protection v. Department of Environmental Conservation supra; Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 466 N.Y.S.2d 279, 453 N.E.2d 508 (1983), amended 60 N.Y.2d 652.

Notwithstanding the different purposes served by criminal and civil contempt, punishment for criminal contempt can include incarceration for up to thirty days while sanctions for civil contempt can include indefinite imprisonment until the contemnor complies with the order, or if the contemnor can no longer perform the act, order imprisonment for up to six months. This seemingly punitive sentencing alternative for civil contempt has been called "aberrant" and "extraordinary". N.A. Development Co., Ltd. v. Jones, 99 A.D.2d 238, 472 N.Y.S.2d 363 (1st Dept.1984). In addition, its constitutionality has been called into question since, as the case law has developed, a finding of civil contempt can be based on a standard of proof less than beyond a reasonable doubt. N.A. Development Co., Ltd. v. Jones, at 243-245, 472 N.Y.S.2d 363 (Sandler, J., dissenting). ³

The standard of proof necessary to find someone in civil contempt is "reasonable certainty." Matter of McCormick v. Axelrod, supra; Matter of Hynes v. Hartman, 63 A.D.2d 1, 406 N.Y.S.2d 818 (1st Dept.1978). While the Courts have generally required a standard of proof beyond a reasonable doubt in criminal contempt cases under the Judiciary Law, Yorktown Central School District No. 2 v. Yorktown Congress of Teachers, 42 A.D.2d 422, 348 N.Y.S.2d 367 (2nd Dept.1973); Matter of Hynes v. Doe, 101 Misc.2d 350, 420 N.Y.S.2d 978 (Sup.Ct.Queens Co.1979), the Court of Appeals, as recently as 1987, noted its view that the standard for both civil and criminal contempt was the same, that of "reasonable certainty." Department of Environmental Protection, supra, 70 N.Y.2d at 240, 519 N.Y.S.2d 539, 513 N.E.2d 706.

In order to reconcile the Court's concerns with the clear language of the statue, it is this Court's view that a single standard of proof--that of proof beyond a reasonable doubt--must be used before the...