Dietrich v. Michii

Appellate Division of the Supreme Court of New York

Dietrich v. Michii

57 A.D.3d 1527, 870 N.Y.2d 181

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 31, 2008

StatusPublished

Cited by2 cases

This text of 57 A.D.3d 1527 (Dietrich v. Michii) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dietrich v. Michii, 57 A.D.3d 1527, 870 N.Y.2d 181 (N.Y. Ct. App. 2008).

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Opinion

Memorandum: 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 AD3d 765 [2008]), 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 AD3d at 766; see generally McCain v Dinkins, 84 NY2d 216, 225-226 [1994]). Indeed, the record supports the court’s determination that defendant failed to present credible evidence that she was financially un[1528]*1528able to comply with the prior order (see Matter of Powers v Powers, 86 NY2d 63, 69-70 [1995]; Matter of Commissioner of Social Servs. v Rosen, 289 AD2d 487, 488 [2001]; cf. Joachim v Joachim, 57 AD2d 546 [1977], appeal dismissed 42 NY2d 1011 [1977], cert denied 434 US 1066 [1978]). Present—Scudder, EJ., Smith, Centra and Fahey, JJ.

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Memorandum: 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 AD3d 765 [2008]), 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 AD3d at 766; see generally McCain v Dinkins, 84 NY2d 216, 225-226 [1994]). Indeed, the record supports the court’s determination that defendant failed to present credible evidence that she was financially un[1528]*1528able to comply with the prior order (see Matter of Powers v Powers, 86 NY2d 63, 69-70 [1995]; Matter of Commissioner of Social Servs. v Rosen, 289 AD2d 487, 488 [2001]; cf. Joachim v Joachim, 57 AD2d 546 [1977], appeal dismissed 42 NY2d 1011 [1977], cert denied 434 US 1066 [1978]). Present—Scudder, EJ., Smith, Centra and Fahey, JJ.

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Bluebook (online)

57 A.D.3d 1527, 870 N.Y.2d 181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dietrich-v-michii-nyappdiv-2008.

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