IN RE: ROBERT M. WEICHERT

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

IN RE: ROBERT M. WEICHERT, PETITIONER-APPELLANT, ET AL., PETITIONER, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS, RESPONDENT, AND KRISTY MONTANARO, RESPONDENT-RESPONDENT. ROBERT M. WEICHERT, PETITIONER-APPELLANT PRO SE.

CA 09-01713

Decided: May 07, 2010

PRESENT:  SCUDDER, P.J., MARTOCHE, LINDLEY, GREEN, AND GORSKI, JJ. RONALD L. VAN NORSTRAND, SYRACUSE, FOR RESPONDENT-RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the motion is denied.

Memorandum:  Supreme Court erred in holding Robert M. Weichert (petitioner) in civil contempt for failing to pay attorney's fees to Kristy Montanaro (respondent), as directed in a prior money judgment.   That judgment was enforceable by execution pursuant to CPLR article 52, and thus holding petitioner in contempt was not an appropriate remedy.  “Judiciary Law § 753(A)(3) generally forbids the use of the court's civil contempt powers to enforce such [a] judgment[ ] ․, and none of the exceptions to the general rule are applicable here (see CPLR 5104)” (Wiebusch v. Hayes, 263 A.D.2d 389, 390-391;  see 4504 New Utrecht Ave. Corp. v Pita Parlor, 143 A.D.2d 171).

Finally, we note that, although petitioner contends that the underlying judgment awarding attorney's fees to respondent was improper, petitioner failed to perfect his appeal from that judgment.   Thus, “issues concerning the propriety of th[e] underlying [judgment] are not properly before us” (Data-Track Account Servs. v. Lee, 291 A.D.2d 827, 827, lv dismissed 98 N.Y.2d 727, rearg. denied 99 N.Y.2d 532).  “Having failed to appeal [from the underlying judgment], petitioner may not disregard [it] with impunity nor may he use the contempt citation to revive any right to appeal or otherwise challenge the underlying [judgment], which right terminated as a result of his failure to appeal therefrom” (People ex rel. Sassower v. Cunningham, 112 A.D.2d 119, 120, appeal dismissed 66 N.Y.2d 914).

Patricia L. Morgan

Clerk of the Court