Commissioner of Community Development of City of Rochester v. Gray

186 A.D.2d 1076

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 7, 1992
• Status: Published

Opinion

— Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court’s finding of contempt is supported by clear and convincing evidence. The allegations in petitioner’s moving papers are uncontroverted because respondents failed to submit opposing papers. Thus, the issue of contempt may be summarily determined (see, Friendly Ice Cream Corp. v Great E. Mall, 51 AD2d 883, appeal dismissed 39 NY2d 1032). It was error, however, for the court’s contempt order to provide that future non-compliance shall be punished, without further application to the court, by additional $250 fines to be imposed upon "every sighting” by a city inspector and that petitioner may resort to self-help to correct the violations.

While section 773 of the Judiciary Law would undoubtedly support the imposition of an additional penalty to punish future violations, it nonetheless requires a subsequent contempt finding by Supreme Court and compliance with article 19 of the Judiciary Law (cf., Town of Ithaca v Franciamone, 54 AD2d 776). Therefore, Supreme Court’s order must be modified to delete the "fifth” and "sixth” ordering paragraphs. Petitioner concedes that the contempt order must be vacated in all respects concerning respondent Seymour R. Gray. (Appeal from Order of Supreme Court, Monroe County, Egan, J.— Civil Contempt.) Present — Callahan, J. P., Green, Balio, Fallon and Davis, JJ.