Town of Southold v. Kelly
| Docket Number | Index No. 015142/2015,Mot. Seq. 005 - MG |
| Decision Date | 12 October 2021 |
| Citation | 2021 NY Slip Op 33891 (U) |
| Parties | TOWN OF SOUTHOLD, Plaintiff, v. FRANK J. KELLY, ELIZABETH B. KELLY. Defendants. |
| Court | New York Supreme Court |
Upon the following papers e-filed and read on this motion to punish in contempt: Order to Show Cause and supporting papers by plaintiff, dated March 9. 2021; Answering Affidavits and supporting papers by defendants, dated April 5. 2021; Replying Affidavits and supporting papers by plaintiff, dated April 6. 2021; Other (and after hearing counsel in support and opposed to the motion) it is, ORDERED that plaintiffs motion for an order adjudicating and punishing defendants for civil and criminal contempt based upon their failure to comply with the Court's March 21 2018 Injunction Order (Luft, J.), is granted; and it is further
ORDERED ADJUDGED AND DECREED that defendant Frank Kelly and defendant Elizabeth Kelly are in civil contempt and criminal contempt of court for having willfully disobeyed the Court's March 21, 2018 Injunction Order (Luft, J.) in that defendants have willfully continued to use the premises located at 1900 Peconic Bay Boulevard, Laurel, New York as a tourist camp and recreational vehicle park without obtaining approval from the Town of Southold and without obtaining a certificate of occupancy or permit, and did so in contravention of the Court's March 21, 2018 Injunction Order (Luft, J.), and such acts did defeat, impair impede and prejudice plaintiff; and it is further ORDERED ADJUDGED AND DECREED that such misconduct of defendants constitutes civil contempt since they failed to obey a lawful judicial order, specifically, the Court's March 21, 2018 Injunction Order (Luft, J.), which was within their power to comply with and such disobedience was calculated to and actually did defeat, impair, impede and prejudice the rights and remedies of plaintiff; and it is further
ORDERED that with respect to both the criminal and civil contempt adjudications, defendants are ordered to comply with the Court's March 21, 2018 Injunction Order (Luft, J.), including that defendants shall, within 10 days from receipt of a copy of this Decision and Order, remove all property consistent with the Order and promptly file proof of same with the Court; and it is further
ORDERED that with respect to the civil contempt adjudication, upon the failure of defendants to remove the recreational vehicles, travel trailers, automobile trailers, house cars and tents used for living quarters and/or overnight sleeping purposes as delineated in the Court's March 21, 2018 Injunction Order (Luft, J.), within 10 days from receipt of a copy of this Decision and Order, then, at defendants' expense, and upon confirmation that such vehicles and other property are owned by defendants, the plaintiff, and any agents acting on its behalf, are authorized, with 24 hours-notice to defendants, to enter the property and remove same within 20 days of defendants' failure to remove same, and plaintiff will be entitled to recover all costs and expenses incurred for the removal which may constitute its actual loss recoverable pursuant to Judiciary Law § 773; and it is further
ORDERED that if the recreational vehicles, travel trailers, automobile trailers, house cars and tents used for living quarters and/or overnight sleeping purposes as delineated in the Court's March 21, 2018 Injunction Order (Luft, J.) are owned by third parties, then the plaintiff must provide such nonparty owners with 30 days-notice to either remove the vehicles themselves or plaintiff shall remove them and such costs for removal shall be paid by the defendants as set forth herein; and it is further
ORDERED that with respect to the civil contempt adjudication, plaintiffs shall file with the Court and provide defendants with a list itemizing all of the costs associated with removal of the items delineated in the Court's March 21, 2018 Injunction Order (Luft, J.), within 10 days of such removal, and such list shall be accompanied by an attorney's affirmation, representing that the costs stated were actually incurred in connection with such removal and defendants shall have 10 days from receipt of same to pay plaintiff such costs; and it is further
ORDERED that if such costs are not paid as ordered herein, upon proof of nonpayment, defendant Frank Kelly and defendant Elizabeth Kelly shall be imprisoned until the costs are paid, which duration may be up to six months pursuant to Judiciary Law § 774, and upon such nonpayment plaintiff shall make a prompt application to this Court for a warrant directing the sheriff of any county of the State of New York to seize and arrest defendant Frank Kelly and defendant Elizabeth Kelly forthwith and bring them before this Court to be committed or for such further disposition as the Court directs; and it is further
ORDERED that in the event that defendants remove such items themselves, then defendant Frank Kelly and defendant Elizabeth Kelly are each fined $250.00 for civil contempt plus costs and expenses which shall be payable to plaintiff, pursuant to Judiciary Law § 773, within 10 days from receipt of a copy of this Decision and Order and defendants shall promptly file proof of such payment with the Court; and it is further ORDERED that if such fines are not paid as ordered herein, upon proof of nonpayment, defendant Frank Kelly and defendant Elizabeth Kelly shall be imprisoned until the fines are paid, which duration may be up to six months pursuant to Judiciary Law § 774 and upon such nonpayment plaintiff shall make a prompt application to this Court for a warrant directing the sheriff of any county of the State of New York to seize and arrest defendant Frank Kelly and defendant Elizabeth Kelly forthwith and bring them before this Court to be committed or for such further disposition as the Court directs; and it is further
ORDERED ADJUDGED AND DECREED that defendant Frank Kelly and defendant Elizabeth Kelly are adjudged to be in criminal contempt pursuant to Judiciary Law § 750 (3), for their willful disobedience of the Court's March 21, 2018 Injunction Order (Luft, J); and it is further
ORDERED ADJUDGED AND DECREED that, as this adjudication of guilt is imposed under the Judiciary Law and not the Penal Law, defendant Frank Kelly and defendant Elizabeth Kelly shall be permitted to purge themselves of the contempt by promptly complying with the Court's March 21, 2018 Injunction Order (Luft, J.); and it is further
ORDERED that defendant Frank Kelly and defendant Elizabeth Kelly shall appear with counsel before the Court in IAS Part 29, located at the Alan D. Oshrin Courthouse, One Court Street, Riverhead, New York 11901, on February 17, 2022 at 9:30 a.m. to be sentenced upon their conviction and adjudication of criminal contempt as decided herein; and it is further
ORDERED that, upon failure of defendant Frank Kelly and/or defendant Elizabeth Kelly to appear as stated above, a warrant will be issued for the arrest of the non-appearing defendant(s); and it is further
ORDERED that plaintiff is directed to promptly serve upon the Suffolk County Clerk, notice pursuant to CPLR § 8019 [c] together with a copy of this Order and payment of any required fees; and it is further
ORDERED that upon Entry of this Order, plaintiff is directed to promptly serve a copy of this Order with Notice of Entry upon defendant Frank Kelly and defendant Elizabeth Kelly by personal service pursuant to CPLR § 308 and to promptly fde the affidavits of service with the Clerk of the Court.
This action was commenced in August 2015 by plaintiff Town of Southold for an injunction directing defendants to comply with the Town Code of the Town of Southold by maintaining their property under the direction of the town ordinances, namely, by obtaining a certificate of occupancy and permits or other town approval before using the premises known as 1900 Peconic Bay Boulevard, Laurel, Town of Southold, County of Suffolk, New York, for parking and using recreational vehicles, travel trailers, and tents for living quarters, and for allowing and/or permitting the subject premises to be utilized as an operable marina. Subsequent to the commencement of this action, defendants use of the property as a marina was approved. Plaintiff alleges that defendants are in violation of various sections of Chapter 253 of the Town Code of the Town of Southold regarding prohibitions of use as a campground. By the undersigned's February 3, 2021 Decision and Order, plaintiff's previous motion for an order adjudicating and punishing defendant Frank Kelly and defendant Elizabeth Kelly in civil and criminal contempt was denied due to improper service.
Plaintiff now renews its motion for an order adjudicating and punishing both defendants for civil and criminal contempts, among other things, based upon their alleged failure to comply with the Court's March 21, 2018 Injunction Order (Luft, J.). Such Decision and Order denied defendants' motion for summary judgment, and granted summary judgment to the Town of Southold awarding them "a permanent injunction enjoining the defendants and their employees, agents, servants, representatives, tenants, lessees and all other persons acting on their behalf or in concert with them from operating a Tourist Camp and/or Recreational Vehicle Park, as those terms are defined and regulated in Chapter 253 of the Code of the Town of Southold, including but not limited to, parking, and/or using recreational vehicles, travel trailers automobile trailers, house cars and tents for living quarters and/or overnight sleeping purposes on the property located at 1900 Peconic Avenue ("Premises")...
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