DIETRICH v. MICHII

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

Deena K. DIETRICH, Plaintiff-Respondent, v. Takako MICHII, Defendant-Appellant.

Decided: December 31, 2008

PRESENT:  SCUDDER, P.J., SMITH, CENTRA, AND FAHEY, JJ. Gross, Shuman, Brizdle & Gilfillan, P.C., Buffalo (Leslie Mark Greenbaum of Counsel), for Defendant-Appellant. Robert R. Radel, Buffalo, for Plaintiff-Respondent.

In this action for breach of contract, defendant appeals from an order finding her in contempt of court for failing to comply with the terms of a prior order and imposing sanctions that included, inter alia, a term of intermittent incarceration.   Contrary to defendant's contention, plaintiff established by clear and convincing evidence that defendant, a judgment debtor, refused to obey the prior order (see Gray v. Giarrizzo, 47 A.D.3d 765, 850 N.Y.S.2d 549), and that her conduct did “defeat, impair, impede, [and] prejudice the rights [and] remedies of” plaintiff (Judiciary Law § 770).   Consequently, Supreme Court providently exercised its discretion in imposing a term of intermittent incarceration upon finding defendant in civil contempt (see § 753[A][1];  cf. Gray, 47 A.D.3d at 766, 850 N.Y.S.2d 549;  see generally McCain v. Dinkins, 84 N.Y.2d 216, 225-226, 616 N.Y.S.2d 335, 639 N.E.2d 1132).   Indeed, the record supports the court's determination that defendant failed to present credible evidence that she was financially unable to comply with the prior order (see Matter of Powers v. Powers, 86 N.Y.2d 63, 69-70, 629 N.Y.S.2d 984, 653 N.E.2d 1154;  Matter of Commissioner of Social Servs. v. Rosen, 289 A.D.2d 487, 488, 736 N.Y.S.2d 42;  cf. Joachim v. Joachim, 57 A.D.2d 546, 393 N.Y.S.2d 63, appeal dismissed 42 N.Y.2d 1011, 398 N.Y.S.2d 535, 368 N.E.2d 285, cert. denied 434 U.S. 1066, 98 S.Ct. 1242, 55 L.Ed.2d 767).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: