Vider v. Vider

• Decision Date: 14 June 2011
• Citation: 85 A.D.3d 906,925 N.Y.S.2d 189,2011 N.Y. Slip Op. 05262
• Parties: Sherrie VIDER, etc., plaintiff-appellant,v.Esther VIDER, etc., respondent;Estate of Helen Wolf, et al., additional counterclaim defendants-appellants.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 906

925 N.Y.S.2d 189

2011 N.Y. Slip Op. 05262

Sherrie VIDER, etc., plaintiff-appellant,

v.

Esther VIDER, etc., respondent;Estate of Helen Wolf, et al., additional counterclaim defendants-appellants.

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

June 14, 2011.

Faber & Troy, Woodbury, N.Y. (Evan S. Hummel of counsel), for plaintiff-appellant and additional counterclaim defendants-appellants.Esther Vider, as executor of the estate of Sal Vider, Dix Hills, N.Y., respondent pro se.REINALDO E. RIVERA, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON, and RANDALL T. ENG, JJ.

In an action to quiet title to real property, the plaintiff and the additional counterclaim defendants appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Suffolk County (Blydenburgh, J.), entered December 2, 2009, as, upon an order of the same court dated October 29, 2009, made after a hearing, inter alia, granting that branch of the motion of the defendant, Esther Vider, as executor of the estate of Sal Vider, which was pursuant to CPLR 5104 to hold them in contempt of court, directed them to comply with the terms of a stipulation of settlement and to forfeit the sum of $35,000 being held in escrow to the defendant, Esther Vider, as executor of the estate of Sal Vider, as a punishment for their contempt of court, and awarded the defendant, Esther Vider, as executor of the estate of Sal Vider, an attorney's fee in the principal sum of $20,183.43.

ORDERED that the judgment is modified, on the law, (1) by deleting the third decretal paragraph thereof awarding the defendant, Esther Vider, as executor of the estate of Sal Vider, an attorney's fee in the principal sum of $20,183.43, and substituting therefor a provision awarding that defendant an attorney's fee in the principal sum of $19,211.75, and (2) by deleting the last decretal paragraph thereof directing that the $35,000 being held in escrow be forfeited by the plaintiff and the additional counterclaim defendants to the defendant, Esther Vider, as executor of the estate of Sal Vider, as a punishment for their contempt of court and substituting therefor a provision directing the plaintiff and the additional counterclaim defendants to pay a fine in the sum of $250 for contempt of court to the defendant, Esther Vider, as executor of the estate of Sal Vider; as so modified, the judgment is affirmed insofar as appealed from, with one bill of costs awarded to the defendant, Esther Vider, as executor of the estate of Sal Vider, payable by the plaintiff and the additional counterclaim defendants, and the order dated October 29, 2009, is modified accordingly.

“In order to sustain a finding of civil contempt under Judiciary Law § 753 based on a violation of a court order, it is necessary to establish by clear and convincing evidence that a lawful court order clearly expressing an unequivocal mandate was in effect, that the person alleged to have violated the order had actual knowledge of its terms, and that the violation has defeated, impaired, impeded, or prejudiced the rights of a party” ( Manning v. Manning, 82 A.D.3d 1057, 1058, 920 N.Y.S.2d 126; see Judiciary Law § 753; Schwartz v. Schwartz, 79 A.D.3d 1006, 1009, 913 N.Y.S.2d 313; Miller v. Miller, 61 A.D.3d 651, 652, 877 N.Y.S.2d 148). “A motion to punish a party for civil contempt is addressed to the sound discretion of the motion court” ( Chambers v. Old Stone Hill Rd. Assoc., 66 A.D.3d 944, 946, 889 N.Y.S.2d 598).

Here, the record demonstrates, by clear and convincing evidence, that the plaintiff, Sherrie Vider, also known as Sherrie Lerner, and the additional counterclaim defendants, the estate of Helen Wolf and the estate of Benjamin Wolf (hereinafter collectively Sherrie Vider and the estates), knowingly disobeyed an order of the Supreme Court dated October 24, 2006, directing them to comply with a stipulation of settlement by executing deeds as reasonably required to convey certain premises to the defendant, Esther Vider, as executor of the estate of Sal Vider (hereinafter Vider's estate). The portion of that order directing them to comply with the stipulation was affirmed by this Court ( see Vider v. Vider, 46 A.D.3d 673, 674, 846 N.Y.S.2d 666), but Sherrie Vider and the estates still failed to comply. Further, the failure to comply “defeated,...