Seril v. Belnord Tenants Ass'n

• Decision Date: 05 April 1988
• Citation: 526 N.Y.S.2d 462,139 A.D.2d 401
• Parties: Lillian SERIL, etc., Plaintiff-Respondent, v. BELNORD TENANTS ASSOCIATION, etc., et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 462

526 N.Y.S.2d 462

139 A.D.2d 401

Lillian SERIL, etc., Plaintiff-Respondent, v. BELNORD TENANTS ASSOCIATION, etc., et al., Defendants-Appellants.

Supreme Court, Appellate Division First Department.

April 5, 1988.

M.I. Berkowitz, New York City, plaintiff-respondent.

E. Schnapp, New York City, defendants-appellants.

Before MURPHY, P.J., and SANDLER, CARRO, MILONAS and SMITH, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County (Alvin F. Klein, J.), entered January 13, 1987, which held defendant Thomas Vitullo-Martin in contempt of a prior court order entered September 19, 1984 preliminarily enjoining defendant Vitullo-Martin and other defendants from conducting any activities, inspecting, examining, viewing, or being on the roof of premises located at 201-225 West 86th Street in Manhattan, unanimously reversed, on the law, the contempt order vacated, and the matter remanded for further proceedings, without costs.

Defendant appeals an order holding him in contempt of court for violating a prior order preliminarily enjoining him, defendant tenant association, and others acting on their behalf from "going on to the roof" of 201-225 West 86 th Street.

Appellant makes several arguments collaterally attacking the validity of the prior order said to have been violated. These may not be entertained since the prior order, jurisdictionally valid, and never stayed during the time relevant herein, had to be obeyed. ( Margulies v. Margulies, 42 A.D.2d 517, 344 N.Y.S.2d 482, appeal dismissed 33 N.Y.2d 894, 352 N.Y.S.2d 447, 307 N.E.2d 562; Burchell v. Cimenti, 38 A.D.2d 897, 329 N.Y.S.2d 347; see also Contempt 21 NY Jur.2d § 30, pp 259-260.) We note that the direct appeal from the prior order was dismissed for failure to perfect.

It is not clear whether the order holding defendant in contempt, which forms the proper focus of our attention on this appeal, purports to cite defendant for civil or criminal contempt. Respondent, however, concedes that she originally sought an order holding defendant in civil contempt, and the order itself cites as authority a civil case reciting the standard of proof necessary to support a finding of civil contempt. We, therefore, deem the order as one for civil contempt. In a case of civil contempt, however, "the court must expressly find that the person's actions were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party to a civil proceeding." ( Oppenheimer v. Oscar Shoes, Inc., 111 A.D.2d 28, 29, 488 N.Y.S.2d 693; see also Powell v. Clauss, 93 A.D.2d 883, 461 N.Y.S.2d 413; Judiciary Law § 753.) Because no such findings were made in this case, the contempt...