Opinion
570478/04.
Decided February 22, 2006.
Landlords appeal from (1) an order of the Civil Court, New York County (Maria Milin, J.), dated November 12, 2002, which modified a prior interim judgment in the sum of $9,855.18 to the extent of vacating the award of use and occupancy against respondent Kendra Musgrave in a holdover summary proceeding and (2) an order of the same court (Joan M. Kenney, J.) entered December 6, 2002, which directed landlord's attorney, Lawrence P. Wolf, Esq., to return all monies seized from Musgrave's bank account in satisfaction of the prior judgment. Nonparty Lawrence P. Wolf appeals from an order of the same court (Joan M. Kenney, J.), entered October 10, 2003, after a hearing, which granted Musgrave's motion to hold Wolf in contempt for failure to comply with the December 6, 2002 order, and imposed a $250 fine.
Order dated November 12, 2002 (Maria Milin, J.) and order entered December 6, 2002 (Joan M. Kenney, J.) affirmed, with one bill of $10 costs. Order entered October 10, 2003 (Joan M. Kenney, J.), reversed, with $10 costs, and respondent Musgrave's motion to hold landlords' attorney in contempt is denied.
PRESENT: McCooe, J.P., Davis, Schoenfeld, JJ.
Landlords obtained an interim money judgment for use and occupancy purportedly against respondent(s), "as per order," and levied upon the bank account of respondent-subtenant Musgrave alone, prior to the trial of this illegal sublet holdover proceeding brought against the stabilized tenant (Griesz-Brisson) and Musgrave.
A judgment or order "must conform strictly to the court's decision" (Spier v. Horowitz, 16 AD3d 400, 401). Where there is an inconsistency between a judgment or order and the decision upon which it is based, the decision controls ( see Madison III Assocs. Ltd. Partnership v. Brock, 258 AD2d 355. Here, Civil Court (Maria Milin, J.) properly modified the interim judgment to conform the terms of that judgment to her prior written decision of August 27, 2001, and her bench decision dictated into the record on October 2, 2001, reflecting her clear intent that the tenant alone was to be liable for interim use and occupancy. Also proper was the court's subsequent restitution order (Joan M. Kenny, J.) directing landlords' attorney to reimburse Musgrave for monies levied from her bank account to satisfy the money judgment.
However, the finding of contempt against landlords' attorney may not stand. Enforcement of the court's October 3, 2001 money judgment was automatically stayed by landlords' filing of a notice of appeal and their posting of an undertaking ( see CPLR 5519[a][2]), which foreclosed the maintenance of a contempt proceeding against landlords' attorney during the pendency of the appeal from the interim judgment ( see Matter of Hicks v. Schoetz, 261 AD2d 944; Hunt v. Grinker, 169 AD2d 477 [1991]). This constitutes the decision and order of the court.