Opinion
208220.
Decided on May 17, 2010.
Edward Fassett, Jr., Esq., Attorney For the Plaintiff, Duanesburg, NY.
The Wladis Law Firm, P.C., Attorneys For Defendant, Syracuse, NY, (Kevin C. Murphy, Esq., of Counsel).
For a number of years the defendant has operated a junk yard on property located on U.S. Route 20, Town of Nassau in Rensselaer County. Over the years there have been disagreements between the Town and the petitioner with regard to the petitioner's operation of the junk yard and the Town's efforts to regulate it. In August 2002 the Town commenced an action against the petitioner in an attempt to enforce Town of Nassau Local Law No. 1 [1989] with regard to the licensing and regulation of junk yards. That action was ultimately resolved when the parties entered into a written stipulation which was so-ordered by the undersigned on September 9, 2002. In May 2003 the Town of Nassau commenced the instant action against the defendant. The action was temporarily halted when the parties, on November 8, 2004, entered into a Stipulation of Settlement which was so-ordered by the Court. That agreement, arrived at after much litigation and negotiation, memorialized a number of commitments on defendant's part regarding the manner in which he would operate and maintain the junk yard. By reason of defendant's violations of the November 8, 2004 Stipulation of Settlement the plaintiff, in June 2006, commenced an enforcement proceeding seeking to permanently enjoin the operation of the junk yard and for liquidated damages. On June 8, 2007 the Court, after a hearing, issued a permanent injunction prohibiting the defendant from further operation of the junk yard and awarded the plaintiff liquidated damages. In its decision and order, the Court found that the defendant failed to erect and maintain a twelve foot high perimeter fence as agreed to in the Stipulation of Settlement; that he used junk vehicles as "gates" for the fence; that he failed to remove motor vehicles from outside the perimeter fence; and that he failed to remedy violations within 48 hours of receiving notice thereof from the plaintiff. On June 26, 2008 the defendant entered into a contract with JB Car Services, Inc. ("JB Car Services") to clean up of the property. A copy of the contract was forwarded to the attorney for the plaintiff. Under the contract, JB Car Services was to remove all cars, trucks, trailers, tires, equipment and miscellaneous metals by October 1, 2008. On October 3, 2008 plaintiff commenced a proceeding to hold the defendant in contempt of court by reason of defendant's failure to clean up the site ("first contempt proceeding"). By order dated September 3, 2009 the Court denied the motion, but directed that the plaintiff complete removal of all vehicles, trailers, tires, scrap metal and other debris from the subject real property on or before December 1, 2009. Plaintiff has now made a second motion to hold the defendant in contempt, this time by reason of his failure to honor the December 1, 2009 deadline imposed in the Court's order dated September 3, 2009. The defendant, in turn, has responded by making a motion to vacate all previous orders issued in this matter under CPLR 5015 (a) (3) and (4) by reason of the alleged absence of subject matter jurisdiction, and fraud, misrepresentation and misconduct of the plaintiff.
The judgment was modified on appeal by reducing the award of liquidated damages, but was otherwise affirmed ( see Town of Nassau v Nalley , 52 AD3d 1013 [3d Dept., 2008], mot for lv to app dismissed 11 NY3d 771 [2008]).
Turning first to defendant's motion to vacate all prior orders, the defendant takes the position that because, in his view, the plaintiff's junkyard legislation was not properly adopted, either as a local law or as an ordinance, this deprived the Court of subject matter jurisdiction of all prior proceedings. The fraud, misrepresentation and misconduct is predicated upon the fact that plaintiff made representations to the Court during the first contempt proceeding that the junkyard legislation was properly enacted when (under defendant's theory) it was not.
The Court finds that defendant's arguments lack merit for several reasons. As stated by the Court of Appeals:
"[t]he question of subject matter jurisdiction is a question of judicial power: whether the court has the power, conferred by the Constitution or statute, to entertain the case before it ( see, Hunt v Hunt, 72 NY 217, 230 ["jurisdiction of the subject-matter is the power lawfully conferred to deal with the general subject involved in the action"]). In our State court system, Supreme Court is a court of original, unlimited and unqualified jurisdiction' ( Kagen v Kagen, 21 NY2d 532, 537; see, NY Const, art VI, § 7) and is competent to entertain all causes of actions unless its jurisdiction has been specifically proscribed' ( Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166" ( Matter of Fry v Village of Tarrytown, 89 NY2d 714, at 718; see also Dickerson v Thompson , 73 AD3d 52 [3rd Dept., March 18, 2010]).
Simply stated, defendant's arguments do not implicate the inherent power of Supreme Court to entertain any of the prior proceedings; and/or the authority of the Court to render a determination with regard to the validity and enforcement of the Town's Junk Yard Ordinance. As such, the Court finds that the defense predicated upon the absence of subject matter jurisdiction has no merit.
Secondly, the statute of limitations to challenge procedural defects in the adoption of the Junk Yard Ordinance has long since expired ( see Matter of Clear Channel Outdoor, Inc. v Town Board of the Town of Windham , 9 AD3d 802 , 803-804[3d Dept., 2004]; Matter of Boland v Town of Northampton , 25 AD3d 848 [3d Dept., 2006). The Court finds that defendant's procedural arguments with regard to the adoption of the Junk Yard Ordinance are time barred.
Thirdly, defendant's various arguments concerning defects in the adoption of the junkyard legislation have already been litigated against the defendant in this action. The issue was addressed in a decision-order dated May 23, 2007 in which the Court found that the plaintiff's junk yard ordinance was valid and enforceable. The Appellate Division, Third Department, took note of this holding in Town of Nassau v Nalley ( 52 AD3d 1013 ) in which it stated:
"To the extent that defendant argues on this appeal that Supreme Court erred in determining that the Town of Nassau Junkyard Ordinance was properly enacted, we note that defendant did not appeal from the May 23, 2007 order in which Supreme Court addressed this issue and, as such, it was not properly before this Court. . ." ( id., at 1014, footnote 1).
The Court finds that the law of the case doctrine precludes further litigation of this issue ( see Dolaway v Urology Assoc. of Northeastern NY, P.C. , 72 AD3d 1238 [2d Dept., April 8, 2010], citing Briggs v Chapman , 53 AD3d 900 , 901-902 [3rd Dept., 2008]).
Lastly, with regard to defendant's claims of fraud, misrepresentation, or other misconduct under CPLR 5015 (a), "these factors are applicable to what has either occurred prior to the judgment or was the means by which the judgment was obtained" ( see Herskowitz v. Friedlander, 224 AD2d 305 [1st Dept., 1996], at 306, citations omitted). The defendant has not made a sufficient evidentiary showing in support of his claim that the prior orders were procured through fraud, misrepresentation or misconduct on the part of the plaintiff. The defendant makes much of a statement made by plaintiff's former counsel in an affirmation dated April 4, 2007 submitted in the first contempt proceeding. Plaintiff's former counsel indicated that a review of the Town's file with respect to the Junk Yard Ordinance "makes clear that the town actually enacted the [Junk Yard Ordinance] as an ordinance in accordance with Article 9 of the Town Law, which governs ordinances, not local laws." Defendant argues that this is a misrepresentation of fact since there is no evidence that the text of the Junk Yard Ordinance was included in the minutes of the Town Board's meetings, as required under Town Law § 264 . Notably however, a review of the two paragraphs immediately following the quoted excerpt makes clear that plaintiff's counsel, in making the foregoing statement, placed heavy emphasis and reliance upon the Town Clerk's certification that the ordinance was duly adopted. In this regard, plaintiff's counsel made express reference to the presumption of regularity which arises from the certification ( see Town Law § 134). The Court is of the view that the record does not support a finding that plaintiff engaged in any form of fraud, misrepresentation or misconduct ( see Woodson v Mendon Leasing Corporation, 100 NY2d 62, 70).
Inclusion of the ordinance in the minutes of the Town Board is also mentioned in Town Law § 133.
In addition, the Court observes that the instant motion to vacate was made almost three years after the date of the April 4, 2007 affirmation, and only after the second of two subsequent applications on the part of the plaintiff to hold defendant in contempt of court. The Court finds that the lengthy delay in making the instant motion is unreasonable, and precludes relief under CPLR 5015 (a) (3) ( see City of Albany Indus. Dev. Agency v Garg, 250 AD2d 991, 993 [3d Dept., 1999]; Rizzo v. St. Lawrence Univ. , 24 AD3d 983 , 984 [3d Dept., 2005]; Di Fiore v Scott , 2 AD3d 1417 , 1418 [4th Dept., 2003]).
Moreover, the Court cannot ignore the overall context in which the instant motion is made: the fact that the first action to enforce the Town's Junk Yard ordinance was commenced in 2002, the instant one in 2003; that the defendant twice entered into written settlement stipulations to abide by the Ordinance; and that the plaintiff, in June 2006, was forced to commence a proceeding to permanently enjoin the operation of a junk yard and for liquidated damages (which proceeding, although taken to the Appellate Division, was ultimately successful). The issue concerning the validity of the Junk Yard Ordinance could easily have been raised and addressed long ago. The defendant had ample opportunity to ascertain the true facts, either by discovery under CPLR Article 31, or by the utilizing the very same procedure belatedly employed here — a Freedom of Information Law request to the Town. In this respect, the argument concerning any alleged misrepresentations made by the attorney for the plaintiff is nothing more than a red herring.
Nor is there anything in the record to support defendant's contention that prior orders should be vacated in the interests of justice.
Turning to plaintiff's motion to hold the defendant in contempt of court, the burden of proof in a contempt application rests with the complainant ( see Rienzi v Rienzi , 23 AD3d 447 , 448 [2d Dept., 2005]). A civil contempt must be proven by reasonable certainty ( see Tihanyi v Grimando , 36 AD3d 893 , 894 [2d Dept., 2007], citing Matter of McCormick v Axelrod, 59 NY2d 574, 583; Matter of Pennington v Woytash , 59 AD3d 1035 [4th Dept., 2009]; Matter of Board of Educ. of City School Dist. of City of New York v Mills , 25 AD3d 952 , 954 [3d Dept., 2006]; Aumell v King , 18 AD3d 905 [3d Dept., 2005]). In order to support a finding of civil contempt based upon a violation of a court order, it is necessary to establish that a lawful court order clearly expressing an unequivocal mandate was in effect and that the party alleged to have violated that order had actual knowledge of its terms ( see Matter of McCormick v Axelrod, 59 NY2d 574, 583, amended 60 NY2d 652; Matter of Frandsen v Frandsen, 190 AD2d 975, 976 [3d Dept., 1993]; Graham v Graham, 152 AD2d 653, 654 [2d Dept., 1989]). Contempt should not be granted unless the order violated is clear and explicit and unless the act complained of is clearly proscribed ( see, Kuenen v Kuenen, 122 AD2d 616 [4th Dept., 1986]; Matter of Hoglund v Hoglund, 234 AD2d 794, 795 [3d Dept., December 19, 1996]). "The mandate alleged to be violated should be clearly expressed, and when applied to the act complained of it should appear, with reasonable certainty, that it had been violated" ( Pereira v Pereira, 35 NY2d 301, 308, quoting Ketchum v Edwards, 153 NY 534, 539; see also, Matter of Perazone v Perazone, 188 AD2d 750 [3d Dept., 1992]; Richards v Estate of Kaskel, 169 AD2d 111, 121 [1st Dept. 1991], lv dismissed, lv denied 78 NY2d 1042). Finally, "it must be demonstrated that the offending conduct 'defeated, impaired, impeded, or prejudiced' a right or remedy of the complaining party" ( Matter of Betancourt v Boughton, 204 AD2d 804, 808 [3d Dept., 1994], quoting Judiciary Law § 753 [A]).
As noted, by order dated September 3, 2009 the Court imposed a December 1, 2009 final deadline for the defendant to complete the clean-up the junk yard. Plaintiff has submitted the affidavit of Kevin Condon, plaintiff's Code Enforcement Officer, who indicates that he inspected the subject premises on December 8, 2009, December 21, 2009, December 28, 2009, January 14, 2010, and January 29, 2010. Mr. Condon indicates that there are numerous unregistered vehicles upon the property, as well as stored commercial vehicles.
In opposition, defendant makes the same argument that he advanced in the first contempt proceeding: that on December 22, 2008 he transferred a portion of the premises (the "Secor" parcel) to one Barbara Secor, the mother of the defendant's son, Stephen. He indicates that between September 3, 2009 and December 1, 2009 he made "substantial" efforts to clean up the parcel which he retained. He relates an incident which he asserts occurred on November 27, 2009 when he was on the parcel now owned by Ms. Secor wherein an argument ensued between him and Ms. Secor (and their son) concerning ownership of certain items of personal property. Ms. Secor allegedly claimed that she and her son owned some of the items of personal property, and that they should not be removed. The argument allegedly escalated, eventually causing Ms. Secor to call the State Police. As a result, he was directed to leave the premises. The defendant indicates that he can no longer lawfully enter upon Ms. Secor's property to complete the clean-up. He takes the position that this is a complete defense to the instant proceeding. In support of his contention he submits an affidavit by Barbara Secor who vouches that the incident which defendant describes occurred, and corroborates that she will not allow defendant access to her property. Defendant has also submitted the affidavit of his attorney which annexes photographs purportedly demonstrating that all junk and debris has been removed from the parcel which he retained. The same affidavit is utilized to document that Ms. Secor's property is strewn with junk vehicles and other debris. In this respect, the defendant and his attorney have confirmed that there are various items of personal property remaining on the Secor parcel. Significantly, while as noted, the defendant and Ms. Secor indicate that during the November 27, 2009 incident the defendant attempted to remove property owned by Ms. Secor and her son, neither identifies what specific items of personal property were at issue. As such, the affidavits are nonfactual and conclusory. Overall, the Court finds that defendant has failed to controvert plaintiff's claim that clean-up of the junk yard is incomplete. To the contrary, defendant's own proof confirms and underscores that the Secor parcel contains junk vehicles and other debris. In this respect there is no need to conduct a hearing with respect to defendant's failure to complete the clean-up of his junk yard as directed in the September 3, 2009 decision-order. That fact has been established, and is conceded.
In its decision-order dated September 3, 2009 the Court found that the defendant was in violation of the June 8, 2007 decision-order, which permanently enjoined the defendant from operating a junk yard. Contempt was denied in that proceeding only because defendant had demonstrated a good faith effort to clean up his junk yard between late June 2008 and October 1, 2008. As a part of the September 3, 2009 order however, the Court directed the defendant to complete removal of all vehicles, trailers, tires, scrap metal and other debris from the subject real property on or before December 1, 2009. The purpose of that order was to bring this matter to a close.
As relevant here, the June 8, 2007 court order recites as follows: "ORDERED that defendant is permanently enjoined from operating a junkyard in the Town of Nassau. . ." The issuance of the permanent injunction was upheld by the Appellate Division ( see Town of Nassau v Nalley, supra , 52 AD3d 1013 , 1015). In the Court's decision-order dated September 3, 2009 in the first contempt proceeding, the Court also addressed an issue, not advanced here, that the defendant was no longer operating junk yard, because he was not engaged in the retail sale of motor vehicle parts (and that therefore he was no longer subject to the permanent injunction). The Court rejected the argument, finding that just because the defendant had ceased retail sales from the premises, this did not mean he was not in violation of the permanent injunction.
As noted in the September 3, 2009 decision-order, the Court was well aware at that time that the defendant had transferred a portion of his property to Barbara Secor on December 22, 2008 (for no consideration). The transfer was subsequent to issuance of the permanent injunction. The Court commented in the September 3, 2009 decision-order that the defendant's transfer of the parcel to Ms. Secor did not relieve him of his obligation to comply with the permanent injunction. In this regard it is well settled that the inability of a party to comply with a court mandate will not excuse compliance where the party's own acts rendered compliance impossible ( see People ex rel. McGoldrick v Douglas, 286 App Div 807 [1st Dept., 1955], Held: Defendants' transfer of real property, thereby disabling them from compliance with a court mandate, was no defense to an application to hold them in contempt of court; see also IBE Trade Corp. v Litvinenko, 288 AD2d 125 [1st Dept., 2001], Held: "[the defendant] will not be heard to invoke a disability created by his own contumacious conduct as an excuse for failing to comply with the purge provisions of the order holding him in contempt"). In this instance defendant's own actions in intentionally conveying a portion of the junk yard to Ms. Secor is what purportedly renders compliance with the permanent injunction and the September 3, 2009 order impossible. The Court finds, as it did in its prior decision-order, that the argument has no merit because the alleged impossibility is self-created. Apart from the foregoing, the Court notes that there is no evidence (or claim made) that the vehicles and scrap remaining on the Secor parcel were included as a part of the conveyance to Barbara Secor. Nor is there evidence that said items are now beyond defendant's reach through appropriate legal action. In other words, even if the Court were to overlook the fact that the defendant through his own actions directly caused his current inability to access the Secor parcel (assuming for the sake of argument the truth of the contention that Ms. Secor will not permit him to enter the premises), the defendant has not demonstrated that he could not avail himself of appropriate civil remedies to peaceably recover possession of the junk vehicles and other personal property located upon the Secor parcel. The Court finds, as it did in its September 3, 2009 decision-order, that defendant's claimed inability to comply with the foregoing court orders does not constitute a meritorious defense to the instant proceeding.
The Court finds that the plaintiff demonstrated with reasonable certainty that the defendant has violated the permanent injunction and the Court's decision-order dated September 3, 2009. The Court further finds that his conduct defeated, impaired, impeded, and prejudiced the rights of the plaintiff. Under the circumstances the Court finds that defendant must be found guilty of civil contempt. The Court is mindful that a civil contempt may result in a fine or imprisonment or both ( see Judiciary Law § 770). Without making any determination with respect to which punishment (or both) may be appropriate, the Court finds that it should first conduct a hearing with regard to whether, and to what extent, the plaintiff has suffered actual loss or injury as a consequence of defendant's misconduct ( see Judiciary Law § 773). The Court will therefore schedule and conduct a hearing, confined to that issue. Thereafter the Court will make a determination as to what the appropriate sanction or punishment should be. Prior to the hearing, the Court will direct that the plaintiff submit an affidavit setting forth the actual loss or injury it has suffered, and the costs and expenses of the instant proceeding. Defendant shall have an opportunity to submit an opposing affidavit.
The Court notes that plaintiff's notice of motion seeks to punish the defendant for a civil contempt, not a criminal contempt.
Accordingly, it is
ORDERED, that defendant's motion to vacate all previous orders is, in all respects, denied; and it is
ORDERED, that plaintiff's motion to hold the defendant in contempt is granted; and it is further
ORDERED, that the plaintiff submit, on or before June 4, 2010, an affidavit with regard to the actual loss or injury which it has suffered as a consequence of defendant's contempt as found herein, and the costs and expenses of the instant proceeding; and it is
ORDERED, that the defendant submit, on or before June 18, 2010, any opposition to plaintiff's submission; and it is
ORDERED, that if the defendant submits opposition to plaintiff's affidavit, that a hearing be held on Thursday, July 1, 2010 at 10:00 a.m. at the Rensselaer County Courthouse, Troy, New York, limited as set forth above.
This shall constitute the decision and order of the Court. All papers will be retained by the Court until final disposition of the motion.