Opinion
April 20, 1998
Appeal from the Supreme Court, Queens County (Golar, J.)
Ordered that the order is modified by deleting the provisions thereof granting attorneys' fees of $19,484 and "expenses" of $710.05; as so modified, the order is affirmed, without costs or disbursements.
The Supreme Court's direction to the appellant in the order dated July 9, 1996, to "continue paying" the respondent's salary and benefits pending a final determination of issues regarding his continued employment clearly expressed "an unequivocal mandate" ( Matter of Department of Envtl. Protection v. Department of Envtl. Conservation, 70 N.Y.2d 233; Matter of McCormick v. Axelrod, 59 N.Y.2d 574; see also, Periera v. Periera, 35 N.Y.2d 301, 308) which the appellant disobeyed. Notwithstanding that the order dated July 9, 1996, was reversed on appeal ( see, Matter of Saffra v. Rockwood Park Jewish Ctr., 239 A.D.2d 507), the Supreme Court properly determined that the appellant's partial withholding of payment from the respondent pending the outcome of the appeal constituted contempt ( see, Kamphf v. Worth, 108 A.D.2d 841; State of New York v. Congress of Racial Equality [C.O.R.E.], 92 A.D.2d 815; County of Orange v. Civil Serv. Empls. Assn., 51 A.D.2d 1031; Wilcox v. Harris, 59 How Prac 262).
However, the Supreme Court erred in granting attorneys' fees and expenses pursuant to Judiciary Law § 773, since it awarded actual damages ( see, Ellenberg v. Brach, 88 A.D.2d 899; Hardwood Dimension Mouldings v. Consolidated Edison Co., 77 A.D.2d 644; Nickolopulos v. Janoff, 268 App. Div. 829, 830).
Pizzuto, J.P., Joy, Friedmann and Florio, JJ., concur.