Breskin v. Moronto

172 A.D.3d 1298

102 N.Y.S.3d 85

Stephen BRESKIN, et al., Appellants,

v.Saturnina Gomez MORONTO, Respondent.

2018–06847

Index No. 503972/14

Supreme Court, Appellate Division, Second Department, New York.

Argued—January 7, 2019

May 29, 2019

Warshaw Burstein, LLP, New York, N.Y. (Robert Fryd and Grant R. Cornehls of counsel), for appellants.

Holihan & Associates, P.C., Richmond Hill, N.Y. (Stephen Holihan of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action, inter alia, for specific performance of a contract for the sale of real property, the plaintiffs appeal from an order of the Supreme Court, Kings County (Johnny L. Baynes, J.), dated May 23, 2018. The order, insofar as appealed from, denied that branch of the plaintiffs' motion which was to hold the defendant in civil contempt, denied that branch of the plaintiffs' motion which was pursuant to CPLR 5107 to direct the Sheriff of Kings County to convey the subject real property to the plaintiffs, and granted that branch of the plaintiffs' separate motion which was for an award of attorneys' fees only to the extent of awarding the plaintiffs an attorneys' fee in the sum of $ 5,000.

ORDERED that the appeal from so much of the order as denied that branch of the plaintiffs' motion which was pursuant to CPLR 5107 to direct the Sheriff of Kings County to convey the subject real property to the plaintiffs is dismissed as academic, as that relief was granted in a subsequent order of the same court dated October 26, 2018; and it is further,

ORDERED that the order is reversed insofar as reviewed, on the law, on the facts, and in the exercise of discretion, that branch of the plaintiffs' motion which was to hold the defendant in civil contempt is granted, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The basic facts of this case are related in a companion appeal (see Breskin v. Moronto , 172 A.D.3d 1296, 102 N.Y.S.3d 88, 2019 WL 2275342 [Appellate Division Docket No. 2016–03080; decided herewith] ). In an order dated February 22, 2016, the Supreme Court granted the plaintiffs' motion for summary judgment on their first cause of action, which sought specific performance, and on their second cause of action, which sought reasonable costs and expenses, including attorneys' fees, pursuant to the terms of the parties' contract. The order directed the defendant to deliver the premises vacant, with no tenants on the first and third floors, and directed the plaintiffs to make a separate motion for an award of reasonable costs and expenses, including attorneys' fees. In an order dated March 7, 2016, the court, upon renewal and reargument, adhered to the determination in the order dated February 22, 2016, and directed that "[s]pecific performance of the contract must be completed on or before" April 6, 2016.

When the closing did not occur by April 6, 2016, the plaintiffs moved, inter alia, to hold the defendant in civil contempt and to direct the Sheriff of Kings County to convey the property to them. In a separate motion, the plaintiffs sought an award of attorneys' fees in the sum of $ 199,123.50, costs in the sum of $ 300, and disbursements and expenses in the sum of $ 4,805.11. In the order appealed from, the Supreme Court directed the defendant to convey the subject real property to the plaintiffs and awarded the plaintiffs attorneys' fees in the sum of $ 5,000, costs in the sum of $ 300, and disbursements and expenses in the sum of $ 4,805.11. The court denied that branch of the plaintiff's motion which was to hold the defendant in civil contempt, "particularly without a hearing ascertaining the intent of the defendant." The plaintiffs appeal.

While this appeal was pending, in an order dated October 26, 2018, the Supreme Court directed the Sheriff of Kings County to convey the property to the plaintiffs, and the property was so conveyed. Accordingly, the remaining issues on this appeal are whether the defendant should have been held in civil contempt and the amount of attorneys' fees awarded to the plaintiffs.

"A motion to punish a party for civil contempt...