Samuel BAKER, Petitioner, v. Michael RUDOLPH, Tatyana Bryant, Respondents.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of Respondent Michael Rudolph's motion for civil contempt, a money judgment, attorney's fees, and other relief:
Order to Show Cause & Affidavits Annexed 1
Attorney Affirmation in Support of Attorney's Fees 2
Exhibits (Avi Moving & Storage invoices) 3
Upon the foregoing cited papers, the decision and order on Respondent's motion is as follows:
RELEVANT PROCEDURAL HISTORY
The immediate licensee holdover proceeding was commenced by Notice of Petition and Petition dated July 9, 2018. On the first court date, July 18, 2018, Michael Rudolph appeared and was substituted for John Doe. Mr. Rudolph entered into a Stipulation of Settlement with Petitioner whereby he consented to a judgment of possession, with issuance of the warrant forthwith and execution of the warrant stayed to October 31, 2018. Subsequently, Tatyana Bryant, another occupant of the subject premises, filed an Order to Show Cause through counsel (Queens Legal Services) to vacate the July 18, 2018 Stipulation and for other relief. Separately, Mr. Rudolph filed a pro se Order to Show Cause, alleging that Petitioner had agreed to pay him $2,000.00, but was “not ready.” On October 9, 2018, both Orders to Show Cause were settled by a stipulation, which was so-ordered by the Court (Judge Lydia Lai). The prior judgment against Mr. Rudolph was vacated, and Ms. Bryant (substituted for Jane Doe) and Mr. Rudolph consented to a new judgment of possession, with issuance of the warrant forthwith and execution of the warrant stayed to March 31, 2019. The Stipulation also provided that if Ms. Bryant and Mr. Rudolph vacated on or before January 31, 2019, “Petitioner will provide relocation assistance of $2,000 to each [R]espondent by cashier's or bank check upon return of keys.”
Subsequently, in late February 2019, Mr. Rudolph, through newly-retained counsel, New York Legal Assistance Group (NYLAG) filed the immediate Order to Show Cause for civil contempt and other relief, including a money judgment and attorney's fees, on the basis of Petitioner's alleged refusal to tender $2,000.00 to Mr. Rudolph upon his attempted vacatur. Shortly thereafter, Ms. Bryant, through counsel, filed an Order to Show Cause seeking a money judgment against Petitioner as a result of his alleged failure to tender $2,000.00 to Ms. Bryant upon her vacatur at the end of January 2019. On March 13, 2019, after taking testimony from Ms. Bryant, the Court granted her Order to Show Cause on default and awarded her a judgment in the amount of $2,000.00 against Petitioner. Also on March 13, 2019, the Court granted Mr. Rudolph's motion for civil contempt and other relief to the extent of setting it down for an inquest on April 4, 2019. Prior to April 4, 2019, Petitioner's attorney moved to withdraw as counsel for Petitioner. On April 4, 2019, the motion to withdraw was voluntarily withdrawn because Petitioner's counsel did not have proof of service upon Petitioner, and the inquest were adjourned to April 18, 2019, so that Petitioner's attorney could properly serve the motion to withdraw upon Petitioner.
On April 18, 2019, Petitioner's attorney presented proof of service of the motion to withdraw, and the Court granted Petitioner's attorney's motion. Thereafter, as Petitioner failed to appear, the Court held an inquest on Mr. Rudolph's contempt motion and reserved decision on the relief sought in the motion. However, the Court held open the record through April 30, 2019 to permit the consideration of New York City Human Resources Administration documents that were subpoenaed if received by April 30, 2019.
INQUEST TESTIMONY AND EVIDENCE
Mr. Rudolph was the sole witness at the inquest. He testified that he has lived on the 2nd floor of the subject building for several years. He testified that when he came to court in July 2018, he was unrepresented and made an agreement to vacate by the end of October 2018. In anticipation of his vacatur, Mr. Rudolph put “99%” of his belongings into storage at AVI Moving & Storage in Long Island City. The Court admitted into evidence documents and invoices for Mr. Rudolph's storage unit from AVI Moving & Storage. The invoices covered the period August 28, 2018 through April 1, 2019. The documents showed that the New York City Human Resources Administration (HRA) paid a total of $1,549.80 for storage fees between October 2019 and March 2019. Of that total, $438.00 was paid in 2019 (two separate payments of $219.00 in March 2019, covering the months of February and March 2019). Mr. Rudolph testified that he had to pay HRA back for the storage fees that were paid on his behalf, though he presented no proof of this at the inquest.1
Mr. Rudolph also testified that under the new agreement that he made with Ms. Bryant and his landlord on October 9, 2018, he would be paid $2,000.00 by his landlord if he moved by January 31, 2019. In advance of January 31, 2019, Mr. Rudolph contacted Petitioner's attorney about being ready to vacate, and a walk-through of his apartment was done with Petitioner's attorney's representative in January 2019. Mr. Rudolph testified that he tried to give his keys to the attorney's representative but was unsuccessful. He also arranged to meet with Petitioner's attorney to tender his keys around February 4, 2019, but his landlord did not appear with the $2,000.00, so the keys were not tendered. At the time of the inquest, Mr. Rudolph testified that he was still in possession of the subject premises because Petitioner never paid the $2,000.00. He explained that he needed the $2,000.00 to be able to move, and that he had been living “in and out of storage.”
Mr. Rudolph's Order to Show Cause seeks to punish Petitioner for civil contempt (pursuant to, inter alia, Judiciary Law §§ 753 and 773) as a result of his disobedience of the so-ordered stipulation dated October 9, 2018. The Court of Appeals has held that “[a] civil contempt is one where the rights of an individual have been harmed by the contemnor's failure to obey a court order.” Matter of Envtl. Protection of City of NY v. Department of Envtl. Conservation of State of NY, 70 NY2d 233, 239 (1987). For civil contempt, “it must be established that the rights of a party to the litigation have been prejudiced.” Id. at 239. Furthermore, “[t]o sustain a finding of civil or criminal contempt based on an alleged violation of a court order it is necessary to establish that a lawful order of the court clearly expressing an unequivocal mandate was in effect [and] appear with reasonable certainty that the order has been disobeyed.” Id. at 240. Finally, “the party charged must have had knowledge of the court's order.” Id. at 240.
Here, the Court finds that the October 9, 2018 so-ordered stipulation contained a clear mandate of the Court, namely that Petitioner “will provide relocation assistance of $2,000 to each [R]espondent by cashier's or bank check upon return of keys.” See, e.g., Will v. County of Nassau, 90 AD2d 795 (2d Dep't 1982) (a so-ordered stipulation is an order of the Court). Based on the credible testimony presented at the inquest, Petitioner disobeyed the Court's clear mandate by failing to provide $2,000.00 to Mr. Rudolph, in spite of Mr. Rudolph's repeated attempts, beginning in January 2019, to tender his keys and vacate the subject premises in a timely manner.
The Court also finds that Mr. Rudolph was prejudiced by Petitioner's disobedience of the October 9, 2018 so-ordered stipulation. The evidence demonstrated that Petitioner's failure to provide Mr. Rudolph with the agreed-upon $2,000.00 had delayed his relocation, caused him to have to continue to store his belongings, and created a tenuous living arrangement whereby he had to live “in and out of storage.”
Finally, the Court finds that Petitioner had knowledge of the October 9, 2018 so-ordered stipulation, which was signed by his attorney in court. Where an attorney has knowledge of a court order, that knowledge is imputed to the party represented by the attorney. See Matter of Envtl. Protection of City of NY, 70 NY2d at 242 (Intervenor-Appellant had “actual notice of the order ․ since the terms of the order were promptly communicated orally and in writing to its attorneys.”). See also McCormick v. Axelrod, 59 NY2d 574, 585 (1983).
Accordingly, Mr. Rudolph has established by clear and convincing evidence that Petitioner disobeyed an unequivocal mandate of the Court (the October 9, 2018 so-ordered stipulation) and that this disobedience impaired and prejudiced Mr. Rudolph's rights in this proceeding. See, e.g., Danker v. Steefel, 41 AD3d 526, 527-528 (2d Dep't 2007). As such, Petitioner is found to be in civil contempt of the Court's order.
CIVIL CONTEMPT PUNISHMENT
Judiciary Law § 753 provides that “[a] court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced,” and Judiciary Law § 773 sets out the fines to be imposed upon a contempt finding. If “actual loss or injury” is proven, the fine will be in the amount of said loss or injury. “Where it is not shown that an actual loss or injury has been caused, a fine may be imposed, not exceeding the amount of the complainant's costs and expenses, and two hundred fifty dollars in addition thereto, and must be collected and paid, in like manner.”
Here, although Mr. Rudolph has been prejudiced by Petitioner's disobedience of the Court's order, he failed to prove actual damages. The evidence showed that all storage costs have been paid by HRA, and although Mr. Rudolph testified that he would have to repay HRA, no evidence of this was presented. Furthermore, even though he has been living “in and out of storage,” Mr. Rudolph did not offer any proof of the pecuniary impact on him. As a result, the Court imposes a statutory fine of $250.00, plus attorney's fees. The Appellate Division, Second Department has held that “the imposition of a fine which includes reasonable legal fees as part of statutorily recoverable costs and expenses is proper in the absence of actual damages.” Quantum Heating Services, Inc. v. Austern, 121 AD2d 437, 438 (2d Dep't 1986). See also Schwartz v. Schwartz, 79 AD3d 1006, 1010 (2d Dep't 2010).
Respondent's attorney, Conor J. Walline, submitted an Affirmation with a detailed accounting of his time spent on the contempt motion. The Affirmation describes 15.79 hours spent on work to enforce Mr. Rudolph's rights under the October 9, 2018 so-ordered stipulation. The Court finds that 15.63 hours were relevant to Petitioner's contempt of the Court's order (time calling the Marshal and discussing the case with Ms. Bryant's attorney are disallowed). Mr. Walline also submitted a resume with his relevant experience. Mr. Walline was admitted to practice in the State of New York in 2015. He has practiced in New York since he was admitted, and has been a staff attorney with NYLAG since January 2018. On the basis of this experience, the degree of complexity of the contempt motion, the prevailing rate in the area, and the result achieved, the Court finds that Mr. Walline's requested rate of $225.00 per hour is reasonable. See, e.g., Drapala v. Pasan, 55 Misc 3d 1222(A), 61 N.Y.S.2d 190 (Civ. Ct. Kings County 2017) (Finding $300.00 per hour to be a reasonable rate for a legal services staff attorney practicing in New York City); Diaz v. Audi of Am., Inc., 57 AD3d 828, 830 (2d Dep't 2008) (Listing the factors to be considered in determining a reasonable attorney's fee). At $225.00 per hour and 15.63 hours allowed, the attorney's fees total $3,516.75. Consequently, the total fine imposed is $3,766.75 ($250.00 statutory fine plus $3,516.75 for costs and expenses). The $250.00 statutory amount shall be payable to Michael Rudolph and the $3,766.75 attorney's fees shall be payable to New York Legal Assistance Group. See Maplewood Management, Inc. v. Best, 143 AD2d 978 (2d Dep't 1988) (Holding that attorney's fees may be awarded to a legal services provider for the indigent).
Petitioner shall pay the fine as directed above and the $2,000.00 that was stipulated to be paid (in the October 9, 2018 stipulation) to Michael Rudolph no later than the 21st day after service of a copy of this Decision/Order and a certified copy of the separate Order Directing Punishment with notices of entry upon Petitioner. In the event that the aforementioned amounts are paid in a timely manner, Petitioner shall be purged of civil contempt. In the event that the aforementioned amounts are not paid in a timely manner, Respondent's attorneys may submit an ex parte application, with proof of service of the notices of entry, for a judgment, plus interest, against Petitioner for the amounts ordered to be paid herein.
The Court finds that the fine is appropriate punishment for civil contempt in these circumstances and does not impose a punishment of incarceration. The Court also declines to impose sanctions pursuant to 22 NYCRR § 130-1.1, as the remedy that would be imposed as a sanction for any frivolous conduct, namely attorney's fees, has already been imposed as a part of the civil contempt fine.
A separate Order Directing Punishment for Civil Contempt in accordance with the findings and determinations made herein is being issued herewith.
1. The Court held open the inquest record through April 30, 2019 to permit the consideration of any HRA documents produced pursuant to Mr. Rudolph's subpoena. However, the Court did not receive any documents from HRA by April 30, 2019, or thereafter.
Clinton J. Guthrie, J.
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