Nostrand v. Town of Denning

Apr 14, 1994
Versions:203 A.D.2d 687
610 N.Y.S.2d 356
1994 N.Y. App. Div. LEXIS 3849
Yesawich Jr., J.

Appeal from an order of the Supreme Court (Torraca, J.), entered July 22, 1993 in Ulster County, which, inter alia, granted plaintiffs motion directing defendant to comply with a prior judgment of the court.

Plaintiff, who earlier had obtained a judgment enjoining defendant to repair and reopen a road (see, 132 AD2d 93), has moved to hold defendant in contempt for failure to comply with that judgment. Defendant opposed the motion on jurisdictional grounds only, asserting that because plaintiffs motion papers lacked the notice mandated by Judiciary Law § 756, the court was without authority to address the merits of the contempt motion. Although Supreme Court neither addressed the jurisdictional argument nor expressly found defendant in contempt, it nonetheless ordered defendant to open and plow the road, imposed a fine of $500 for every day the road remained closed after a certain date, and awarded plaintiff $500 in costs pursuant to 22 NYCRR part 130. Defendant appeals.

The only means by which a court can enforce compliance with a judgment of the type at issue here is to punish the noncompliant party for contempt in the manner provided by the Judiciary Law (see, CPLR 5104; Judiciary Law art 19); no finding of contempt having been made, there was no basis for the imposition of a fine (see, Matter of Bender & Bodnar v Buell, 143 AD2d 661, 662). Moreover, inasmuch as the notice required by Judiciary Law § 756 was not given, Supreme Court lacked jurisdiction to make such a finding (see, Mente v Wenzel, 192 AD2d 862, appeal dismissed in part, lv dismissed in part, lv denied in part 82 NY2d 843; Matter of Dawn P. [Nancy P.], 180 AD2d 800). Finally, the award of sanctions was also improper for the court did not set forth the basis for the award in its written decision, as it is required to do (see, 22 NYCRR 130-1.2; Hendrickson v Saratoga Harness Racing, 170 AD2d 719, 721-722).

Mikoll, J. P., Mercure, Crew III and White, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as partially granted plaintiffs *688motion; motion denied in its entirety; and, as so modified, affirmed.