Sona Persaud, respondent, v. Maheshawarie Pharsi, et al., appellants. (2010)

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

Sona Persaud, respondent, v. Maheshawarie Pharsi, et al., appellants.

2009-02217 (Index No. 24261 /02)

Decided: February 02, 2010

REINALDO E. RIVERA, J.P. MARK C. DILLON ARIEL E. BELEN SHERI S. ROMAN, JJ.

Warren S. Hecht, Forest Hills, N.Y., for appellants. William V. DeCandido, P.C., Forest Hills, N.Y., for respondent. In an action, inter alia, to impose a constructive trust upon certain real property, the defendants appeal, as limited by their brief, from so much of an order and judgment (one paper) of the Supreme Court, Queens County (Dollard, J.), entered February 5, 2009, as denied that branch of their motion which was to vacate a prior judgment of the same court entered November 15, 2006 (O'Donoghue, J.), upon their default, imposing a constructive trust on the subject property and directing them to convey to the plaintiff legal title to a one-half interest in that property, and, upon granting those branches of the plaintiff's cross motion which were to appoint a referee to determine the rights of the parties and to recommend apportionment or partition and sale of the property, and for the issuance of a warrant for the defendants ‘ arrest as a sanction for contempt of court pursuant to an order of the same court (Dollard, J.), entered January 18, 2008, appointed a referee and directed the issuance of a warrant for the defendants ‘ arrest. ORDERED that the order and judgment is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff's cross motion which was for the issuance of a warrant for the defendants ‘ arrest as a sanction for contempt of court, and substituting therefor a provision denying that branch of the cross motion;  as so modified, the order and the judgment is affirmed insofar as appealed from, with costs to the plaintiff. However, the court should not have granted that branch of the plaintiff's cross motion which was for the issuance of a warrant for the defendants ‘ arrest as a sanction for contempt.   The record contains no proof that the order entered January 18, 2008, was properly served upon the defendants.