Opinion
Index No. 063075/2018
12-05-2023
RH 528 West 159 Street LP, Petitioner, v. Ekaterina Timofeeva, Respondent.
For Petitioner: Joseph Claro. For Respondent: Heather Ticotin.
For Petitioner: Joseph Claro.
For Respondent: Heather Ticotin.
HON. JACK STOLLER, J.H.C.
Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:
Pages Numbered
Order To Show Cause and Supplemental Affidavit and Affirmation Annexed 1, 2, 3
Affidavit In Opposition 4
Reply Affirmation 5
Upon the foregoing papers, the Decision and Order on this motion are as follows:
RH 528 West 159 Street LP, the petitioner in this proceeding ("Petitioner"), commenced this summary proceeding against Ekaterina Timofeeva, the respondent in this proceeding ("Respondent"), seeking a money judgment and possession of 528 West 159th Street, Apt. 10, New York, New York ("the subject premises") on the basis of nonpayment of rent. Respondent interposed a counterclaim and prevailed, obtaining a judgment against Petitioner. Proceedings to enforce the judgment ensued. Respondent now moves to hold Petitioner in contempt.
Respondent shows that Petitioner incurred delays in full compliance with an information subpoena concerning Petitioner's bank accounts ("the Subpoena") and that, by the time that the marshal had the necessary information to attach the bank account ("the Account"), found that the Account had been depleted of funds. Respondent also alleges upon information and belief that Petitioner has been telling tenants of the building in which the subject premises is located ("the Building") not to honor a levy from the marshal directing tenants to pay rent to the marshal.
A member of Petitioner ("the Member") avers in opposition to the motion that there is a foreclosure action pending against Petitioner, captioned at Deutsche Bank Trust v. RH 528 West 159 Street LP et al., Index # 850545/2023 (S.Ct. NY Co.), where the Court has entered into an order dated October 25, 2023 appointing a temporary receiver and directing that tenants pay rent to the receiver. The Member also asserts that, since 2019, he has not had access to the Account. The Member does not support this assertion with written documentation.
Petitioner argues that the Court does not have jurisdiction to entertain this contempt motion. Every court in which a party may commence a special proceeding to enforce a money judgment has jurisdiction to render a contempt committed with regard to a procedure to enforce a judgment. CPLR §5210. The Civil Court of the City of New York is such a court if the judgment was rendered in this Court and the judgment respondent, inter alia, has a place for the regular transaction of business in New York City. CPLR §5221(a)(3). Petitioner's affidavit in opposition to the motion shows that Petitioner has been operating a multiple dwelling at the subject premises, which demonstrates that Petitioner has engaged in the regular transaction of business in New York City. Cf. New York City Civil Court Act §303 (the proper county in which to litigate a summary proceeding shall be the county in which the real property is situated).
Petitioner argues that Buckeye Retirement Co. LLC, Ltd. v. Quattrocchi, 36 A.D.3d 641 (2nd Dept. 2007) stands for the proposition that Civil Court does not have the jurisdiction to entertain such a contempt motion. Buckeye Retirement Co. LLC, Ltd., supra, reversed an order of the Supreme Court which removed to Civil Court a contempt motion to enforce a judgment obtained in Supreme Court. The proposition that a contempt motion in judgment enforcement proceedings is properly heard in the same court that rendered the judgment does not support the argument that Civil Court does not have jurisdiction to enforce its judgments. Moreover, the Housing Part of the Civil Court has the power to punish for contempt, New York City Civil Court Act §110(e), a power which is "unrestricted." Department of Housing Preservation v. 24 West 132 Equities, Inc., 1986 NY Misc. LEXIS 3152, *6 at 1 (App. Term 1st Dept.). Accordingly, Petitioner does not state jurisdictional grounds to deny Respondent's motion.
The judgment on Respondent's counterclaim, which derived from a rent overcharge cause of action, exceeded the jurisdictional level of the Civil Court. However, to the extent that such an amount may implicate the jurisdiction of this Court to hear this contempt motion, this Court has the jurisdiction to render a judgment for rent due "without regard to amount", New York City Civil Court Act §204, and this Court has jurisdiction of counterclaims "without regard to amount", New York City Civil Court Act §208(b).
Civil contempt requires, inter alia, a determination that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. El-Dehdan v. El-Dehdan, 26 N.Y.3d 19, 29 (2015), Matter of First Am. Title Ins. Co. v. Cohen, 163 A.D.3d 814, 816 (2nd Dept. 2018). An order is not clear and unequivocal for contempt purposes when the order fails to "specify precisely what action or actions were being enjoined." Gerelli Ins. Agency, Inc. v. Gerelli, 23 A.D.3d 341, 342 (2nd Dept. 2005). See Also Vujovic v. Vujovic, 16 A.D.3d 490, 491 (2nd Dept. 2005)(a stipulation did not constitute a clear and unequivocal mandate when it did not direct the defendant to "forward, complete, or execute any forms and/or authorizations within 10 days.") There is no order in this matter expressing a clear and unequivocal mandate with regard to clearing out the Account or communicating to other tenants in the building. Accordingly, the first focus in this contempt inquiry would not be that conduct aggrieving Respondent so much as the question of Petitioner's compliance with the Subpoena.
While criminal contempt bears some differences from civil contempt, criminal contempt also requires a showing of an unequivocal mandate. Cf. Matter of Department of Envtl. Protection of City of NY v Department of Envtl. Conservation of State of NY, 70 N.Y.2d 233 (1987).
In addition, with regard to any allegation of Petitioner's conduct after the appointment of a receiver, a receiver is entitled to collect not only rent that became due after their appointment but also rent that accrued but went unpaid before their appointment. Kane Associates v. Blumenson, 30 A.D.2d 127, 128 (1968), affirmed, 23 N.Y.2d 942 (1969).
As of the time Respondent made this motion, Petitioner had complied with the Subpoena, which would purge any contempt the Court could otherwise impute upon Petitioner. Accordingly, civil contempt would not be appropriate at this posture, as coercive penalties designed to modify the contemnor's behavior by relieving the contemnor from penalties if the contemnor purges are civil in nature. Avraham v. Avraham, 155 A.D.3d 931 (2nd Dept. 2017). As Respondent seeks penalties meant to punish Petitioner past acts regardless of subsequent efforts, the nature of the relief potentially available to Respondent would therefore be criminal contempt. Id.
In order to hold Petitioner in criminal contempt, Respondent must prove beyond a reasonable doubt that Petitioner willfully disobeyed the Subpoena. Savel v. Savel, 153 A.D.3d 872, 873 (2nd Dept. 2017), People v. Metropolitan, 231 A.D.2d 445 (1st Dept. 1996). Even though Petitioner eventually complied with the Subpoena, Respondent takes the position that Petitioner dragged its feet in doing so and used that time to clear out the Account. As noted above, the Member averred in opposition to the motion that he did not have access to the Account. Rather, he alleges that an "outside investor" in Petitioner has held the ability to unilaterally control the Account since June 4, 2019. The Member goes on to aver that since the outside investor's assumption of control over the Account, "Petitioner has had nothing to do with day-to-day operations or any account relating to the Building. [The outside investor] had a manager put in separate third-party manager [sic]."
Notably, Petitioner disclosed the existence of the Account to Respondent in response to a question in Respondent's information subpoena regarding an account held by Petitioner or "in association with others...." Perhaps an account controlled by an investor in Petitioner cannot be deemed to be "Petitioner's" account even if the account is in "association" with Petitioner. But this disclosure, together with the Member's averment that the current account holder also engaged management to operate Respondent's building, leaves unresolved fact issues regarding the Account's connection with Petitioner. Unresolved fact issues warrant a hearing of a contempt motion. Stavrou v. Contogouris, 43 A.D.3d 334, 335 (1st Dept. 2007). See, e.g., Del Vecchio v. Del Vecchio, 219 A.D.3d 572, 579 (2nd Dept. 2023)(even when an ex-spouse produced an agreement purporting to modify the ex-spouse's maintenance obligation, it was error to deny without a hearing a motion to hold the ex-spouse in contempt for a default in the prior maintenance obligation, as the movant for contempt raised issues of fact).
Accordingly, it is ordered that the Court denies so much of Respondent's motion as seeks to hold Petitioner in civil contempt, and it is further ordered that the Court grants so much of Respondent's motion that seeks to hold Petitioner in criminal contempt to the extent that the Court shall calendar the motion for a hearing. The Court will arrange a date with counsel for the parties.
This constitutes the decision and order of this Court.