Docket No. 10-1413.

2014 NY Slip Op 33867(U)

KEVIN WARD, Plaintiff v. MURARIU BROTHERS, INC., Defendant.

Supreme Court, Greene County.

Attorney(s) appearing for the Case

Kaplan Law Firm, by: Edward I. Kaplan, Esq. , PO Box 155, Hunter, NY 12442, For the Plaintiff.

Freeman Howard, P.C. By: Andrew B. Howard, Esq. , PO Box 1328, Hudson, NY 12534, For the Defendant.



The plaintiff commenced the instant action with the filing of a summons and complaint in September 2010, seeking a prescriptive easement over a driveway that provides ingress and egress for property located at 3345 Route 23A, Palenville, County of Greene, State of New York. Issue was joined and a jury trial was held that resulted in a mistrial. Thereafter, a second trial was scheduled but prior to the commencement thereof, the parties entered into a written stipulation of settlement. The stipulation, dated August 25, 2013, required, inter alia, that the defendant deliver an easement, in suitable form for recording, to the plaintiff if, after six (6) months, the Town of Catskill Planning Board failed to make a determination upon the defendant's proposed "Pine Grove Site Renovation Plan".

No determination was made by the Town Planning Board within the six (6) month period. Thereafter, the plaintiff repeatedly sought the required easement. Ultimately, an easement was delivered; however it was not in conformity with the stipulation of settlement. According to plaintiff's counsel, the easement contained three (3) "significant deviations" from the stipulation dated July 25, 2013 (Attorney affirmation in support of motion for contempt, ¶ 15). One, the driveway was located further east and was encumbered by two (2) telephone poles located in the center of the easement (Id., ¶ 15(a)). Two, the easement contains a 90 degree angle turn making it "impossible for the plaintiff to navigate" (Id., ¶ 15 [b]). Finally, the opening in the fence onto the plaintiff's property was 26.5 feet from the southeast boundary of the plaintiff's property rather than the 15 foot distance agreed to in the stipulation (Id., ¶ 15 [c]).

Thereafter, a second easement was provided removing the 90 degree angle turn and replacing it with a radius; however the location of neither the telephone poles nor the opening in the fence was not corrected (Id., ¶ 17 [a] [b]). Therefore, on August 24, 2014, the plaintiff moved for enforcement of the settlement agreement and punishment of the defendant for contempt of Court. This motion also sought legal fees and costs for work associated with enforcement of the August 2013 agreement.

At a September 18, 2014 court appearance, the parties entered into a second stipulation allowing the defendant an additional six (6) months to remove the telephone poles from the easement prior to its filing and recordation. However, the defendant's counsel opposed those branches of the motion seeking an Order of contempt and the award of attorney fees and costs; he argued that there was no bad faith on the part of his client but, rather, a difference of opinion and misunderstanding (Transcript, at 12, lines 12-17). The Court reserved on the decision which it now renders.

"Under the well-established rule in New York, attorney's fees are deemed incidental to the litigation and may not be recovered unless supported by statute, court rule or written agreement by the parties" (Casamento v. Juarequi, 88 A.D.3d 345, 353 [2d Dept 2011], citations omitted). Here, the plaintiff has moved pursuant to CPLR § 5104 and Judiciary Law § 753 for a finding of contempt. CPLR § 5104 provides that a party "may be punished by contempt if he or she refuses or willfully neglects to obey [any interlocutory or final judgment or order]" (Id.; 12A Carmody Wait 2d § 70:240 at 486). Judiciary Law § 753 provides that "the court need not find * * * intentional conduct on the part of the contemnor" (Campanella v. Campanella, 152 A.D.2d 190, 194 [2d Dept 1989]). Rather, "the mere act of disobedience, regardless of its motive, is sufficient to sustain a finding of civil contempt if such disobedience defeats, impairs, impedes or prejudices the rights of a party" (Id., citations and internal quotation marks omitted).

In this case, the parties entered into a stipulation of settlement in lieu of litigating the matter at a second trial. Stipulations of settlement are favored by the courts, especially those made in "open court" (Hallock v. State of New York, 64 N.Y.2d 224, 230 [1984]) and only "cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident" will allow a party to be relieved from the terms and conditions of a stipulation made during litigation" (Robison v. Borelli, 239 A.D.2d 656, 657 (3d Dept 1997]). Here, the defendant does not assert there are grounds to relieve him from the consequences of the stipulation.

In order to find civil contempt for violating a stipulation it must be established that there was a lawful court order in effect that clearly expressed an unequivocal mandate; that the person who allegedly violated the order had actual knowledge of its terms; and that his or her actions or failure to act defeated, impaired, impeded or prejudiced a right of a moving party (see, Hamilton v. Murphy, 79 A.D.3d 1210, 1213 [3d Dept 2010]), citations and internal quotation marks omitted). The defendant does not deny the existence of any of the aforementioned factors.

Furthermore, insofar as the defendant never moved to set aside or appeal the July 25, 2013 Order it must be obeyed (see, Clark v Bininger, 75 N.Y. 344, 352 [1878], accord Matter of Cornblum, 133 Misc. 357, 359 [Sup Ct County of Erie 1928]). Where a party offers an excuse for disobedience to an Order, there must be a factual showing; "[v]ague and conclusory allegations . . . are not acceptable" (Matter of Hildreth, 28 A.D.2d 290, 294 [1st Dept 1943]). Clearly, as a signatory to the Order, the defendant had knowledge of and failed to comply with the Order. Accordingly, the Court finds that defendant's failure to comply with the order was "disobedience to a lawful mandate of the court" (Judiciary Law §753 [A] [1]) that "defeated, impaired, impeded or prejudiced" (Id. § 753 [A]) the right of the plaintiff to the easement and this Court finds that the defendant is ADJUDGED to be in civil contempt of court.

However, the plaintiff has not provided any calculation of actual damages arising from the contempt, nor is this Court able to calculate the damages. Judiciary Law § 773 provides guidance in such a situation (see, 317 W 87 Assoc v. Dannenberg, 170 A.D.2d 250, 250-251 [1st Dept 1991]), and "permits an aggrieved party to recover from the offending party costs and expenses that are directly related to the contemptuous conduct" (Hamilton v. Murphy, 100 A.D.3d 1235, 1236 [3d Dept 2012], citations omitted1). Therefore, attorney's fees may be awarded upon a finding that actual damages cannot be calculated (Vastwin Invs. v. Aquarius Media Corp., 295 A.D.2d 216, 217 [1st Dept 2002]; Matter of Lembo v. Mayendia-Valdes, 293 A.D.2d 789, 791 [3d Dept 2002]).

The plaintiff herein incurred expenses in the amount of one thousand three hundred fifty dollars and 00/100 ($1,350.00) for legal services directly related to the contemptuous conduct.2 The Court must now consider the reasonableness of the attorney's fees requested. "[I]n determining the justice and reasonableness of an attorney's claim for services [a court] should consider the time spent, the difficulties involved in the matters for which the services were rendered, the nature of the services, the amount involved, the professional standing of the counsel, and the results obtained" (In re Potts, 213 A.D. 59, 62 [4th Dept 1925], appeal dismissed 241 N.Y. 51 [1925], aff'd 241 N.Y. 593 [1925]).

Plaintiff's counsel is a local practitioner who appears regularly in this Court as well as the Family and County Courts; his hourly rate of $250 is customary and reasonable. Furthermore, the amount of time counsel spent on the case was not inordinate. In addition, the matter — determination of an easement — is complex and a considerable amount of case law is applicable to the issue presented. Finally, the plaintiff's attorney was successful in his motion for a finding of contempt. Therefore, after considering these facts, the plaintiff's motion for a finding of contempt and attorney fees is GRANTED and judgment shall be entered for the plaintiff in the total amount of sixteen hundred dollars ($1,600.00) as follows: thirteen hundred fifty dollars ($1,350.00) for legal fees and two hundred fifty dollars ($250.00) for the required statutory fine (see, Judiciary Law § 773; State of New York v. Unique Ideas, 44 N.Y.2d 345, 349 [1978], citing Moffat v. Herman, 116 N.Y. 131, 134 [1889]).

The prevailing party is entitled to collect costs from the losing party in addition to damages (see, 2-33 Weinstein-Korn-Miller, NY Civ Prac CPLR § 33.01) in the discretion of the Court (see, Applications of Baker, 284 N.Y. 1, 10 [1940]). In this situation, however, since the Court has awarded attorney fees, it declines to also award costs. Therefore, that branch of the plaintiff's motion which seeks costs is DENIED. The Court has considered the argument raised in counsel's supplemental affirmation and declines to disturb the agreement reached on September 18, 2014 as well as to impose additional attorneys fees.

This constitutes the DECISION, ORDER and JUDGMENT of this Court the original of which is being transmitted to counsel for the plaintiff. A copy of this document has been transmitted to counsel for the defendant. Motion papers have been delivered to the Greene County Clerk. Counsel is not relieved from the applicable provisions of CPLR § 2220 respecting filing, entry and notice of entry.


1. The case cited here is an appeal from the decision of the lower court after the remittal ordered in the prior case.
2. It is not necessary to hold a hearing on the amount of the attorney fees where "ample documentation of fees is provided and the amounts are not challenged" (In re Arbitration Between Fidelity Brokerage Service. Inc, 294 A.D.2d 244, 245 [1st Dept 2002]). Here, the itemized bill for services of the plaintiff's attorney was unchallenged.


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