Opinion
9074/02.
Decided March 20, 2008.
Azrom R. Vann, Esq., New York, NY, Attorney for Petitioners.
Israel Vider, Esq., Brooklyn, NY, Attorney for Respondent.
Upon the foregoing papers, petitioners Abraham Herzog and Machla Herzog (petitioners) move, pursuant to CPLR 1001, 1003 and 3025, for leave to serve an amended petition, and separately move, by order to show cause, for an order restoring this matter to the active calendar and resuming a prior contempt hearing against respondent. Respondent David Oberlander (respondent) separately cross-moves to dismiss the above-entitled proceeding, pursuant to CPLR 3211(a)(10), 1001 and 1003; for an order, pursuant to CPLR 6314, "vacating all preliminary injunctions against [him];" and for an order holding petitioners in contempt of court and compelling arbitration.
Facts
On December 20, 1999, respondent purchased a two-thirds interest in a building located at 666 Bedford Avenue in Brooklyn. Philip Herzog, a nonparty, owns the remaining one-third interest. The four-story building is occupied by petitioner's family on the ground floor and by respondent's family on the second, third and fourth floors. In 2001, the parties entered into a written Dwelling Use Agreement which governs the use of the dwelling.
According to the first amended verified petition, in 2000, a dispute arose between the parties concerning an addition to the dwelling which respondent intended to construct. The proposed construction included building an extension, erected on poles, which would consist of an additional, enclosed room on the second floor of the dwelling, designated as a play room. Petitioners objected to respondent's plans on the grounds that they were inconsistent with the terms of the Dwelling Use Agreement, and that if built, petitioners would be precluded from building a rear addition which they were planning to add to the ground floor of their apartment.
When petitioners learned that respondent intended to proceed with the construction of the playroom, they commenced an arbitration proceeding against respondent before a religious tribunal, the Beth Din. Thereafter, the parties agreed in writing to appear before the arbitration panel of three Rabbis to hear and determine the dispute. The arbitration agreement provided, among other things, that "[i]n the event that after an award is made, a dispute between the parties arises, as to the interpretation of the award [or] compliance of the parties . . . the parties agree that the arbitrators shall have jurisdiction on the matters to the extent permitted by law." After hearing testimony, the arbitration panel rendered a written decision on or about December 9, 2001, which provided, among other things, that:
"(1) respondent is obligated [to undertake] in writing to alter the plans that he has after the Claimants [petitioners] have Approved Plans, that it [Respondent's Plans] should be in agreement with the [Claimants] [petitioners],
(2) The Beth Din allows the Claimants [petitioners] a period of three months to make Approved Plans for that which they want to build,
(3) After Claimants [petitioners] have Approved Plans then the Respondent will change his plan by an Amendment of his Plan to be [sic] suitable to the content of the Claimants's [sic] [petitioners'] Plans.
(4) If by . . . [March 8, 2002], then the Respondent is permitted to build according to his present plans."
Thereafter, petitioners moved to vacate the arbitration award and respondent cross-moved to confirm the award. In their motion, petitioners argued that the award should be vacated because it was irrational and incapable of being performed. Specifically, petitioners contended that while they abided by the provision in the arbitration award that they file their plans within 90 days (on January 11, 2002), since the rules and regulations of the Department of Buildings (DOB) provided that only one application for a permit for construction on a particular dwelling could be approved at any given time, and respondent had already filed an application and had it approved by the DOB, the DOB would not issue a building permit to them.
According to DOB records, it appears that petitioners filed their plans with the DOB on October 16, 2002, that they were approved on December 9, 2002, and that they were issued on February 7, 2003.
By order dated June 26, 2002, the court (Honorable Gloria Cohen Aronin), found that the arbitration award was "irrational to the extent that it cannot be performed." It therefore held that:
". . . unless the respondent's current application o[n] file with the Buildings Department can be withdrawn, modified to be in agreement with petitioners' plans, and resubmitted, together with an application by petitioners, the above-cited portion of the award is vacated and the matter is referred back to the Beth Din to reevaluate the issue and fashion an award that is possible to perform."
The remaining portions of the award were confirmed.
Subsequently, petitioners sought a preliminary injunction prohibiting respondent from engaging in any construction until a permit was issued from the DOB for modified plans of both petitioner and respondent. Respondent cross-moved "for reargument and renewal of the petition to vacate the [a]rbitration [a]ward and its cross-motion to confirm the [a]rbitration [a]ward." By order dated October 10, 2002, the court granted petitioners' motion, holding that they had "met their burden of proving both a clear right to the ultimate relief sought and an urgent necessity of preventing irreparable harm." As such, the court enjoined and prohibited respondent "from engaging in any construction that would prevent compliance with [its] June 26, 2002 decision and order." The court denied respondent's cross motion.
See October 10, 2002 order.
On December 5, 2002, the Beth Din rescheduled a hearing for January 7, 2003, stating that the October 10, 2002 order "had directed the [p]arties to return to the Beth Din." In the interim, it stayed all parties from "taking any action in connection with the above matter," from filing papers with the DOB or any other city, state or governmental agency, and from all construction ("No construction should be commenced by any of the parties pending a hearing and determination of the Bais Din)."
As a result of petitioners' failure to appear at the January 3, 2003 hearing, the Beth Din issued a notice of contempt against them. By letter dated January 13, 2003, petitioners' counsel advised the Beth Din that this court had not vacated the arbitration award or directed the parties to the Beth Din, but had "established a mechanism to implement the intent of the [award] which was to allow each of the parties to construct the respective improvements to their home."
On or about February 7, 2003, the DOB issued permits to petitioners bearing building permit numbers 301423378-01-EQ.FN and 301423378-01-AL.
In March, 2003, respondent asserts, and it appears undispured, that petitioners, without any authorization, cut and removed the steel support columns supporting respondent's second floor balcony, creating a hazardous condition. As a result, on or about March 26, 2003, the DOB issued a notice of violation, which states that:
"The Brooklyn Boro Commissioner has revoked permit numbers 301037777 and 301423378. Remedy: Stop all work, make site safe, have architects or engineers of record contact the commissioner in regard to this action."
On March 28, 2003, respondent states that since petitioners failed to remedy the dangerous construction and make the premises safe, the DOB issued a Preemptory Vacate Order, directing "all persons occupying any part or parts of the structure located at 666 Bedford Avenue (second floor balcony) Vacate such part or parts of the premises forthwith." The order also states:
"This order is issued because there is imminent danger of the safety and life of the occupants, in that: Due to excavation at rear yard and removal of steel lally columns, second floor balcony is leaning out of level and temporarily braced with heavy timber."
By letter dated April 2, 2003, the DOB formally revoked the permits previously issued to petitioners "based upon objections raised by the owner."
Respondent asserts that in July, 2004, in order to remedy the dangerous condition, he filed plans to replace the supporting columns and to restore the condition of the porch as it was at the time of the October 12, 2002 decision and order.
On or about August 25, 2004, the DOB approved respondent's plans to restore the columns to support the balcony; on or about September 10, 2004, the DOB issued a permit to restore the support columns; and on or about December, 2004, respondent restored the steel support columns at the subject premises.
By order to show cause dated March 2, 2005, petitioners moved in this court before Honorable Gloria Cohen Aronin for an order permanently enjoining respondent from interfering with the construction performed or to be performed "to construct those alterations[s] which were permitted" by the above-noted permits issued to petitioners on February 7, 2003, and directing the DOB to, among other things, rescind their "Revocation of the Building Permits and to permit the Petitioners . . . to proceed with [their construction]."
By order dated June 8, 2005, this court denied petitioners' order to show cause with respect to the relief sought against the DOB. It further held that:
"[The] [m]atter is set down for a hearing on July 20, 2005 at 11 A.M. to determine if Respondent violated this court's prior order dated October 10, 2002 by installing columns [supporting (the) balcony]). Cross motion to vacate prior orders of this court dated June 26, 2002 and October 16, 2002 is denied and to enjoin petitioners from performing construction at 666 Bedford Ave., Brooklyn, New York is denied as premature. Order to show cause remains active as to David Oberlander."
The court was referring to the order dated October 10, 2002.
Although the order to show cause did not seek contempt, the issue of contempt was raised at the hearing and the court allowed petitioners to continue the hearing, as noted above.
Petitioners' motion against respondent was adjourned several times at petitioners' request and was marked off the calender in February, 2006.
Motions Now Before the Court
By order to show cause dated February 1, 2007, petitioners moved to restore to the active calendar their March, 2005 order to show cause to permanently enjoin respondent from interfering with the construction performed by petitioners pursuant to the above-noted permits issued to petitioner in February, 2003, and to resume the contempt hearing to determine if respondent breached the October 10, 2002 order by installing columns supporting the balcony. In support of their motion, petitioner Machla Herzog asserts that during the course of the hearing to determine whether respondent had breached the October 10, 2002 order, respondent had contacted the DOB and had caused it to revoke the permits which had been issued to petitioners. Ms. Herzog also asserts that petitioners needed the files of the architect who handled this matter for them, and that in 2003, they commenced suit against the architect to obtain those files. Ms. Herzog states that having received the files, petitioners are now in a position to resume the hearing.
It does not appear that a hearing took place. Petitioners appear to be referring to oral argument on the motion for a permanent injunction.
In opposition to this motion, respondent asserts that the October 10, 2002 order, which enjoined him from "engaging in any construction that would prevent compliance" with the June 26, 2002 order, only contemplated future construction, and since it is undisputed that the columns existed on June 26, 2002 and on October 10, 2002, it is impossible that his restoration of these columns violated the October 10, 2002 order. Respondent also maintains that Ms. Herzog's statement that she realized during the 2005 hearing that she needed her architect's files in order to establish respondent's contempt, and commenced an action against her architect to do so, is false since the action against her architect was commenced in 2003, two years before the motion for a permanent injunction (and contempt) was filed in March, 2005. Respondent also states that Ms. Herzog fails to disclose which documents she sought and why they were necessary to establish contempt. He states that since the issue of contempt was limited solely to whether the restoration of the steel columns in December, 2005 violated the October 10, 2002 order, any plans obtained from the architect would be irrelevant to this issue.
Ms. Herzog replies that respondent concedes that he engaged in building after the October 10, 2002 order which in and of itself warrants granting petitioners' motion. In addition, she notes that it was respondent who caused the DOB to revoke petitioners' permits, and thus he should not be permitted to benefit from his own wrongdoing. In this regard, Ms. Herzog states that if respondent felt that an emergency existed, he should have moved in this court for relief, rather than resorting to self help. As to her need for the architect's files, she states that the "contempt" hearing was adjourned for the express purpose of permitting her to obtain them since the DOB representative, who was present at the hearing, could not locate them. Ms. Herzog also points out that when respondent restored the columns in January, 2005, he "proceeded with construction to make the [p]orch more permanent and installed supporting columns on the foundation of [petitioners'] proposed expansion."
By cross motion dated April 20, 2007, respondent moved to dismiss the proceeding, pursuant to CPLR 3211(a)(10), 1001, and 1003, for failure to name necessary party Philip Herzog, the one-third owner of the subject premises. In support of the cross motion, respondent notes that a court may always consider whether there has been a failure to join a necessary party.
Petitioners have not submitted opposition to the motion. However, by order to show cause dated May 2, 2007, petitioners moved, pursuant to CPLR 1001 and 1003, for leave to file and serve a first amended petition adding Philip Herzog as a petitioner which, they say, will avoid the risk of prejudice and entry of a judgment purporting to bind the rights of a necessary party who has not had the opportunity to be heard.
In his reply to petitioners' motion and in opposition to petitioners' order to show cause, respondent argues that: 1) the proposed first amended petition which seeks to vacate the arbitration award in its entirety is barred by the law of the case and res judicata because the June 26, 2002 order vacated a portion of the award but confirmed the balance of the award; 2) this proceeding terminated upon entry of the June 26, 2002 order; 3) petitioners offer no excuse for the 5-year delay in seeking leave to amend; 4) the proposed first amended petition would violate the statute of limitations since the first amended petition, dated April 27, 2007, seeks to vacate an arbitration award dated December 9, 2001 (CPLR 7511 ["An application to vacate or modify an award may be made by a party within ninety days after its delivery to him"]); 5) Philip Herzog, who was not a party to the arbitration agreement nor a participant in the arbitration hearings, lacks standing to seek vacatur of the award: 6) the proposed amendment lacks merit since the petition seeks to vacate the award based upon impossibility, but petitioners in fact performed the directives of the award (by obtaining their permits) within the stated time frame; and 7) the petition claims that there is a justiciable controversy but petitioners nevertheless assert that there is nothing to arbitrate.
On or about October 17, 2007, respondent cross-moved to hold petitioners in contempt of this court's June 26, 2002 order; imposing sanctions against petitioners on the ground that they failed to comply with that order; compelling petitioners, pursuant to CPLR 7503, to return to arbitration pursuant to the June 26, 2002 order; and by enjoining petitioners, pursuant to CPLR 7503, from taking any actions in this proceeding pending the conclusion of arbitration. In support of this cross motion, respondent argues that petitioners should be held in contempt because they have willfully failed for over five years to comply with this court's July 26, 2002 order to return to arbitration. Respondent also contends that the court should compel petitioners to return to arbitration because the parties agreed to arbitrate, the arbitration agreement explicitly provided that the Beth Din had jurisdiction over the matter, the court directed the partes to return to arbitrate in its July 26, 2002 order, and petitioners failed to do so, in spite of being held in contempt by the Beth Din. In addition, respondent contends that courts routinely stay actions under the present circumstances.
In opposition to the cross motion, Machla Herzog asserts, among other things, that since respondent could have complied with the July 26, 2002 order "there was never any need to return to the Beth Din." Further, Ms. Herzog states that the architects she hired convinced the DOB to process petitioners' plans and issue petitioners' a work permit, "nothing remained for the Beth Din to determine or resolve." Ms. Herzog also asserts that respondent made a cross motion for contempt to avoid the continuation of the contempt proceedings against him; that the remedy to undo the damage done by respondent in causing petitioners' permits to be revoked lies within this court which has continuing jurisdiction, and not with the Beth Din; and that respondent waived his right to proceed via arbitration since he has actively participated in this proceeding for the last five years.
In reply, counsel for respondent states, among other things, that the July 26, 2002 order directed the parties to return to the Beth Din since it confirmed the balance of the award, which directed the parties to return to the Beth Din in the event of any "argument between them specifically or theoretically about this ruling;" that this cross motion was not motivated by petitioners' motion to continue the contempt hearing; that despite their claim that there is nothing to arbitrate, petitioners state in their petition that a justiciable controversy exists; that petitioners admit that the award was capable of being performed since they obtained their permits within the time limit prescribed by the award, showing that the petition was factually false and brought solely to harass; that petitioners' suggestion that respondent wrongfully caused the revocation of their permits is misleading as the revocation was the result of petitioners' cutting the steel support columns which created a hazardous condition; and that he has not waived arbitration by defending against the petition or by aggressively participating in new litigation.
By motion dated October 26, 2007, respondent cross-moved, pursuant to CPLR 6314, to vacate all preliminary injunctions against him "to the extent any of the stays appear to still [be] in effect." In support of this cross motion, respondent asserts that since petitioners have already obtained the permits envisioned by the arbitration award, the petition and the October 10, 2002 order, this proceeding is rendered moot, and "the injunction set forth in the October 10, 2002 [o]rder ceased to exist by its very terms."
In opposition to the cross motion, petitioners argue that since a final judgment was entered on June 26, 2002, the time to move to modify the judgment expired; that the October 10, 2002 order permanently enjoined respondent from engaging in any construction at the premises and is still in effect since respondent caused the DOB to revoke their work permits; that the cross motion improperly seeks to vacate all preliminary injunctions when the October 10, 2002 granted a permanent injunction; and that no change in circumstances has occurred which would warrant any modification of the permanent injunction.
Discussion
In addressing respondent's cross motion to hold petitioners in contempt of court and compelling petitioners to proceed to arbitration, the court first addresses that branch of the cross motion which seeks to compel arbitration. In this regard, the court notes that "New York public policy favors enforcement of contracts for arbitration" ( Cooper v Bruckner , 21 AD3d 758 , 758, 759). Specifically, "this State favors and encourages arbitration as a means of conserving the time and resources of the courts and the contracting parties. Therefore, New York courts interfere as little as possible with the freedom of consenting parties' [sic] to submit disputes to arbitration'" ( Stark v Molod Spitz DeSantis Stark, P.C. , 9 NY3d 59 , 66, quoting Smith Barney Shearson, Inc. v Sacharow, 91 NY2d 39, 49-50 [citations and internal quotations marks omitted]). Further, "[a]ny doubts as to whether an issue is arbitrable will be resolved in favor of arbitration" ( Smith Barney Shearson, Inc., 91 NY2d at 49-50). As particularly relevant here, "[r]eligious courts have long been recognized as proper venues for the voluntary resolution of contractual disputes" ( Matter of Pinson v Pinson, 2006 NY Slip Op 51685U, 4-5 [2006]). Thus, it is settled that "[a]n arbitration before a Beth Din is a valid form of alternate dispute resolution ( id.), and therefore a Beth Din, by voluntary agreement of the parties, can resolve contractual disputes" ( id., citing Weisenberg v Sass, 209 AD2d 424; Meisels v Uhr, 79 NY2d 526; Avitzur v Avitzur, 58 NY2d 108; Kingsbridge Center of Israel v Turk, 98 AD2d 664).
Moreover, "[o]n a motion to compel or stay arbitration, the court must determine, in the first instance, whether the parties made a valid agreement to arbitrate" ( Brown v Bussey, 245 AD2d 255, 255), "and if so, whether the issue sought to be submitted to arbitration falls within the scope of that agreement" ( Schenkers Int'l Forwarders, Inc. v Meyer, 164 AD2d 541, 543). "Once it is determined that the parties have agreed to arbitrate the subject matter in dispute, the court's role has ended and it may not address the merits of the particular claims'" ( id., quoting Matter of Praetorian Realty Corp. [Presidential Towers Residence], 40 NY2d 897, 898 ["Where there is no substantial question whether a valid agreement was made or complied with, and the claim sought to be arbitrated is not barred by limitation under subdivision (b) of section 7502, the court shall direct the parties to arbitrate"] ( Brown, 245 AD2d at 255; CPLR 7503[a]). Therefore, "[w]hen an agreement to arbitrate precedes any judicial intervention, compliance with that agreement should be compelled" ( Friedman v Friedman , 34 AD3d 418 ).
Here, the parties entered into a broad agreement for the Beth Din to arbitrate "[a]ll disputes between the . . . parties related to 666 Bedford Ave. Brooklyn, NY 11211."
Therefore, it is clear that the parties entered into a valid arbitration agreement. In addition, the agreement to arbitrate clearly embraced the instant dispute. Further, the order of June 26, 2002 explicitly referred the parties back to the Beth Din if they did not resubmit coordinated plans to the DOB. As noted, the order of June 26, 2002 provided that the award was irrational to the extent that it could not be performed, and held that "unless respondent's current application on file with the [DOB] [could] be withdrawn, modified to be in agreement with petitioners' plans, and resubmitted, together with an application by petitioners," the above-cited portion of the award would be "vacated and the matter is referred back to the Beth Din to reevaluate the issue and fashion an award that is possible to perform." Based upon the foregoing, the court clearly directed the parties to return to the Beth Din if they failed to comply with its directive to resubmit coordinated plans to the DOB, whereupon the Beth Din was directed to "reevaluate the issue and fashion and award that is possible to perform." As noted above, and contrary to petitioners' contention that they complied with the June 26, 2002 order by obtaining their own permits, the record reveals that the parties failed to resubmit coordinated plans to the DOB, and thus failed to comply with the court's directive. As such, the court clearly contemplated that they return to the Beth Din. Further evidencing that the dispute should be resolved by the Beth Din, the arbitration agreement provides that:
"In the event that after an award is made, a dispute between the parties arises as to the interpretation of the award, [or] compliance of the parties . . . the parties agree that the arbitrators shall have jurisdiction on the matter to the extent permitted by law."
With respect to petitioners' argument that respondent waived his right to arbitrate this dispute, the court notes that "[a] determination that a party has waived the right to arbitrate requires a finding that the party engaged in litigation to such an extent as to manifest [ ] a preference clearly inconsistent with [its] later claim that the parties were obligated to settle their differences by arbitration' . . . and thereby elected to litigate rather than arbitrate" ( Fein v General Elec. Co. , 40 AD3d 807 , 808). Despite the history of protracted litigation of this matter, the record does not support the conclusion that respondent waived his right to arbitration. In this regard, respondent cross-moved to confirm the arbitration award, moved to renew and reargue this motion, opposed petitioners' motion to restore their "contempt" motion, moved to dismiss the proceeding, and cross-moved to compel arbitration. Thus, but for those branches of respondent's cross motions for an order holding petitioners in contempt of court, and to vacate all preliminary injunctions against him, his motion practice was consistent with his desire to proceed with arbitration ( see Fein, 40 AD3d at 808; BR Ambulance Service, Inc. v Nationwide Nassau Ambulance, 150 AD2d 745, 746).
In light of the broad arbitration agreement entered into by the parties, the court's order referring the parties back to arbitration if they failed to comply with its directive, and, as particularly relevant here, "the public policy of this State to encourage arbitration by preventing parties to such agreements from using the courts as a vehicle to protract litigation'" ( De Shazo v Hirschler, 282 AD2d 257, 258, quoting Matter of Weinrott [Carp], 32 NY2d 190, [1973]), the resolution of the parties' dispute is for the arbitrator ( see General Mills, Inc. v Steuben Foods, Inc., 244 AD2d 868, 868). Therefore, respondent's cross motion to compel arbitration is granted.
Respondent also cross-moves for an order holding petitioners in contempt of court, imposing sanctions based upon this contempt, and enjoining petitioners from taking any action in this proceeding pending the completion of arbitration. With respect to that branch of the cross motion seeking contempt and to sanction petitioners, in light of the court's order directing the parties to return to arbitration, these branches of the cross motion are denied. In this regard, all issues relating to the present dispute should be adjudicated by the Beth Din, and any finding of contempt or imposition of sanctions by this court would not further the resolution of this dispute. Moreover, since the matter is referred back to the Beth Din, the court grants that branch of respondent's cross motion enjoining petitioners from taking any action in this proceeding pending the completion of arbitration ( see Fletcher v Kidder, Peabody Co., 184 AD2d 349, affd 81 NY2d 623; see also Spatz v Ridge Lea Assocs., LLC, 309 AD2d 1248, 1249, citing CPLR 7503(a) [court's determination granting defendants' motion to compel arbitration results in a stay of the action]).
As to petitioners' motion to restore their "contempt" motion (to permanently enjoin respondent from interfering with the construction performed by petitioners pursuant to their above-noted permits) and to continue the contempt hearing, in light of the court's determination to refer the matter back to the Beth Din "to reevaluate the issue and fashion an award that is possible to perform," the court, in its discretion, finds that the issue raised at the contempt hearing, namely whether respondent violated this court's October 10, 2002 order by installing columns supporting the second floor balcony," is more appropriately referred to the Beth Din, as this issue is integrally related to the main dispute which the Beth Din will reevaluate upon resumption of arbitration. Accordingly, that branch of petitioners' motion to restore their "contempt" motion to the active calendar and to continue the contempt hearing is denied.
As to respondent's cross motion to vacate all preliminary injunctions against him, even assuming the court's October 10, 2002 order only contemplated future construction, in light of the respective parties' history of making alterations to the subject premises prior to the completion of the arbitration process and/or confirmation of such award by the court, and petitioners' assertion that respondent's restoration of the supporting columns has intruded on their own foundation, respondent is enjoined from engaging in any construction at the subject premises. As such, respondent's cross motion for an order vacating the preliminary injunction is denied.
Lastly, in light of the determination of the court to compel the parties to proceed to arbitration, the court denies the motion of petitioner to add one-third owner Philip Herzog as a necessary party, and the cross motion of respondent to dismiss based upon petitioners' failure to name him as a necessary party. In any event, it should be noted that Philip Herzog was not a party to the arbitration hearing and his absence would not have been a ground for vacatur of the award ( see e.g. Antique Rug Dealers Ass'n by Chafiian v Hakimian, 210 AD2d 111, 112). Therefore, when petitioners sought to vacate the award (and respondent cross-moved to confirm it), they were not required to join Philip Herzog as a party since, as a stranger to the arbitration proceedings, he would not be inequitably affected by the judgment of the arbitration panel and would be free to disregard its findings. Based upon the foregoing, the motion by petitioners for leave to amend and the cross motion by respondent for dismissal are denied.
In sum, that branch of the cross motion of respondent for an order holding petitioners in contempt and to compel arbitration is granted to the extent of compelling arbitration; the cross motions of respondent to dismiss and to vacate all preliminary injunctions against him are denied, and the motions of petitioners for leave to serve an amended petition, and to restore their contempt motion to the active calendar and to continue the contempt hearing, are denied.
This constitutes the decision and order of this court.