PIEROT v. MAROM (2019)

DECISION & ORDER

ORDERED that the money judgment is affirmed, without costs or disbursements.

By summons and complaint dated September 22, 2014, the plaintiffs commenced this action against the defendants to enforce a stipulation of settlement dated July 10, 2014.  In relevant part, the defendants agreed in the stipulation of settlement to transfer an exclusive easement over a shared driveway to the plaintiffs (see Pierot v. Marom, 172 A.D.3d 928, 100 N.Y.S.3d 364, 2019 WL 2030007 [Appellate Division Docket No.k2;  decided herewith] ).  In an order dated March 17, 2015, the Supreme Court, among other things, directed the defendants not to enter the area covered by the exclusive easement and to remove certain large plastic barriers located near the area covered by the exclusive easement.  According to the plaintiffs, on April 16, 2015, the defendants excavated land while removing the barriers and in so doing, violated the exclusive easement.

In May 2015, the plaintiffs moved, inter alia, to hold the defendants in civil contempt.  The defendant Naomi Marom opposed the plaintiffs' motion and cross-moved for an award of counsel fees in accordance with the terms of the stipulation of settlement.  The Supreme Court, after a hearing, determined that the plaintiffs failed to satisfy their burden of proving the defendants' contempt, and awarded Naomi Marom the sum of $ 20,000 in counsel fees, together with costs and disbursements.  The court thereafter entered a money judgment dated November 15, 2016, in favor of Naomi Marom and against the plaintiffs in the sum of $ 29,958.99.  The plaintiffs appeal from the money judgment.

A motion to punish a party for civil contempt is addressed to the sound discretion of the court (see El–Dehdan v. El–Dehdan, 26 N.Y.3d 19, 29, 19 N.Y.S.3d 475, 41 N.E.3d 340;  Savel v. Savel, 153 A.D.3d 872, 873, 61 N.Y.S.3d 97;  Matter of Hughes v. Kameneva, 96 A.D.3d 845, 846, 946 N.Y.S.2d 211).  “A party seeking imposition of punishment for civil contempt must prove by clear and convincing evidence that the party to be charged with the contempt violated a clear and unequivocal mandate of the court of which it had knowledge, and thereby prejudiced the movant's rights” (Rothauser v. Greer, 145 A.D.3d 929, 930, 44 N.Y.S.3d 119;  see El–Dehdan v. El–Dehdan, 26 N.Y.3d at 29, 19 N.Y.S.3d 475, 41 N.E.3d 340;  S.P.Q.R. Co., Inc. v. United Rockland Holding Co., Inc., 136 A.D.3d 610, 611–612, 24 N.Y.S.3d 701).

Here, contrary to the plaintiffs' argument, the nontestimonial evidence adduced at the hearing did not conclusively establish that the land that the defendants excavated was within the exclusive easement.  As such, the Supreme Court's determination was based on its evaluation of the credibility of the witnesses at the hearing.  “Since a hearing court has the advantage of seeing and hearing the witnesses as they testify, we give appropriate deference to its credibility determinations” (Rothauser v. Greer, 145 A.D.3d at 930, 44 N.Y.S.3d 119;  see Praimnath v. Torres, 59 A.D.3d 419, 419–420, 873 N.Y.S.2d 133).  According the appropriate deference here, there is no basis to overturn the court's determination that the plaintiffs failed to meet their burden of proving by clear and convincing evidence that the defendants' conduct violated the exclusive easement.

Contrary to the plaintiffs' contention, the Supreme Court's determination as to the amount of the counsel fees award to Naomi Marom was a provident exercise of discretion (see Matter of William Madenberg Irrevocable Trust, 143 A.D.3d 904, 905, 39 N.Y.S.3d 798;  RMP Capital Corp v. Victory Jet, LLC, 139 A.D.3d 836, 840, 32 N.Y.S.3d 231).

SCHEINKMAN, P.J., RIVERA, HINDS–RADIX and BARROS, JJ., concur.