Chambers v. Old Stone Hill Rd. Assocs.

2009 NY Slip Op 7786, 66 A.D.3d 944, 889 N.Y.S.2d 598 (App. Div.)

 

RULE:

A motion to punish a party for civil contempt is addressed to the sound discretion of the motion court. Moreover, the movant bears the burden of proof.

FACTS:

Plaintiff owners appealed an order by the state Supreme Court that denied their motion to hold defendants in civil contempt for failure to comply with a prior order and judgment, which directed them to remove a wireless telecommunications service facility from the encumbered property.  Defendants were directed to remove a telecommunications service facility that violated a restrictive covenant in a deed (hereinafter the original facility). The original order did not set forth a specific timeline or date for the removal of the original facility. In a later stipulation, the plaintiffs agreed to a stay of enforcement of the original order pending determination of the defendants' appeal therefrom. The construction of a replacement facility was begun within one month of the trial court's order and was completed one year later. The order of the NY Supreme Court was affirmed.

ISSUE:

Was there sufficient evidence to hold defendants in civil contempt?

ANSWER:

No.

CONCLUSION:

The appellate court found that the owners failed to establish with reasonable certainty that the defendants disobeyed the order. The record supported the contrary conclusion that they proceeded diligently and in good faith to obtain a building permit to construct the replacement facility and dismantle the original facility. The owners' failure to establish that they suffered any injury or compensable damages under Judiciary Law § 753(A)(3) also warranted denial of their motions. The parties' remaining contentions were without merit.

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