Town of Copake v. 13 Lackawanna Properties, LLC

• Decision Date: 13 May 2010
• Parties: TOWN OF COPAKE, Respondent, v. 13 LACKAWANNA PROPERTIES, LLC, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

900 N.Y.S.2d 508

73 A.D.3d 1308

TOWN OF COPAKE, Respondent,

v.13 LACKAWANNA PROPERTIES, LLC, et al., Appellants.

Supreme Court, Appellate Division, Third Department, New York.

May 13, 2010.

Dennis B. Schlenker, Albany, for appellants.

Rapport, Meyers, Whitbeck, Shaw & Rodenhausen, L.L.P., Hudson (Victor M. Meyers of counsel), for respondent.

Before: CARDONA, P.J., MERCURE, SPAIN, KAVANAGH and GARRY, JJ.

MERCURE, J.

Appeal from an order of the Supreme Court (Nichols, J.), entered June 12, 2009 in Columbia County, which granted plaintiff's motions to hold defendants in civil and criminal contempt.

Defendant Salvatore Cascino is the owner of defendant 13 Lackawanna Properties, LLC and defendant Copake Valley Farm, LLC, the entities which, respectively, own and operate a 310-acre farm located in the Town of Copake, Columbia County. Plaintiff alleges that defendants are primarily engaged in the business of hauling solid waste and trash-including garbage, refuse and demolition debris-and that they dump this waste on the farm property. In a prior action, the parties entered into a stipulation of settlement providing that defendants would use the farm property for agricultural purposes only, apply for and obtain permits from plaintiff prior to commencing any construction on the parcel, and restore certain areas of the property as required by the Department of Environmental Conservation. Plaintiff commenced this action in 2006, seeking to enjoin defendants from violating its Zoning Law and Solid Waste Law.

Upon plaintiff's motion, Supreme Court issued a temporary restraining order (hereinafter TRO) prohibiting "all furtherconstruction and/or excavation ... [and the] depositing [of] any materials of any type upon the premises." The TRO was twice amended to permit defendants to engage in limited farming activities on 41acres of the property with advance notice to plaintiff, and to comply with a consent decree issued in connection with a separate action commenced by the Department of Environmental Conservation to compel wetlands restoration on the premises. Thereafter, plaintiff moved twice to hold defendants in civil and criminal contempt, alleging that defendants had, among other things, proceeded with the construction of a farm stand and 10-foot high stone wall without a permit, and deposited fill material and wood pallets on the premises. Supreme Court granted plaintiff's motions and imposed fines and a suspended sentence of incarceration. In addition, the court directed defendants to remove the stone wall and materials deposited on the property, and cease further construction of the farm stand. Defendants appeal, and we now affirm.

In order "[t]o sustain a finding of either civil or criminal contempt based on an alleged violation of a court order[,] it is necessary to establish that a lawful order of the court clearly expressing an unequivocal mandate was in effect[,] ... that the order has been disobeyed" and that the charged party "had knowledge of the court's order" ( Matter of Department of Envtl. Protection of City of N.Y. v. Department of Envtl. Conservation of State of N.Y., 70 N.Y.2d 233, 240, 519 N.Y.S.2d 539, 513 N.E.2d 706 [1987]; see Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 583, 466 N.Y.S.2d 279, 453 N.E.2d 508 [1983], amended 60 N.Y.2d 652, 467 N.Y.S.2d 571, 454 N.E.2d 1314 [1983] ). The same act may constitute both criminal and civil contempt; "the element which escalates a contempt to criminal status is the level of willfulness associated with the conduct" ( McCain v. Dinkins, 84 N.Y.2d 216, 226, 616 N.Y.S.2d 335, 639 N.E.2d 1132 [1994]; see Judiciary Law § 750[A][3]; Matter of McCormick v. Axelrod, 59 N.Y.2d at 583, 466 N.Y.S.2d 279, 453 N.E.2d 508). Moreover, criminal contempt must be proven beyond a reasonable doubt ( see Matter of People v. Hooks, 64 A.D.3d 1075, 1077, 883 N.Y.S.2d 378 [2009], lv. dismissed 13 N.Y.3d 815, 890 N.Y.S.2d 434, 918 N.E.2d 947 [2009] ). Civil contempt, in contrast, must be proven by clear and convincing evidence, and requires a showing that the rights of a party have been prejudiced ( see McCain v. Dinkins, 84 N.Y.2d at 226, 616 N.Y.S.2d 335, 639 N.E.2d 1132; Judiciary Law § 753[A][3]; Automated Waste Disposal, Inc. v. Mid-Hudson Waste, Inc., 50 A.D.3d 1073, 1074, 857 N.Y.S.2d 229 [2008] ).

Here, contrary to defendants' arguments that the order was vague and ambiguous, the TRO expressed a clear and unequivocal mandate prohibiting "all further construction and/or excavation ... [and the] depositing [of] any materials of any type upon the premises." Furthermore, plaintiff presented the testimony of several individuals and numerous photographsdemonstrating that defendants willfully and openly...