WHEN NEIGHBORS FIGHT OVER A FENCE - AND CONTEMPT

This litigation is over a common driveway and the hindrance by one neighbor over the use of it via a fence. It was commenced in 2012 and then settled by stipulation in 2015 as to how the fence would be moved after a survey was done. However, one neighbor, despite the so ordered stipulation, failed to comply with the stipulation and unilaterally removed the fence prior to the survey. That neighbor claimed the other neighbor was stalling with the prerequisite survey and the removal was necessary for safety reasons. A motion for criminal and civil contempt was made.

Dreher v Martinez, 2017 NY Slip Op 07707, Decided on November 8, 2017, Appellate Division, Second Department:

"The imposition of punishment for criminal contempt requires a showing that the alleged contemnor knowingly, wilfully, and contumaciously violated a clear and unequivocal court mandate (see Judiciary Law § 750[A][3]; Wheels Am. N.Y., Ltd v Montalvo, 50 AD3d 1130, 1130-1131; City of Poughkeepsie v Hetey, 121 AD2d 496, 497; Matter of Holtzman v Beatty, 97 AD2d 79, 82). Here, the defendants failed to meet their burden of showing that plaintiff had knowingly, wilfully, and contumaciously violated a clear and unequivocal mandate in a stipulation of settlement, which was agreed to by the parties on August 31, 2015, and so-ordered by the Supreme Court on [*2]October 6, 2015 (hereinafter the settlement agreement) (see Wheels Am. N.Y., Ltd v Montalvo, 50 AD3d at 1130-1131; City of Poughkeepsie v Hetey, 121 AD2d at 497; Matter of Holtzman v Beatty, 97 AD2d at 82).

The defendants also failed to establish that the plaintiff refused or wilfully neglected to obey a clear and unequivocal mandate in the settlement agreement which could give rise to a finding of civil contempt pursuant to CPLR 5104 (see CPLR 5104; Matter of Lombardi v Habicht, 293 AD2d 476, 477). Likewise, the record does not support the defendants' contention that the plaintiff disobeyed a clear and unequivocal mandate in the settlement agreement which defeated, impaired, impeded, or prejudiced the rights of the defendants (see Judiciary Law § 753[A]; Chambers v Old Stone Hill Rd. Assoc., 66 AD3d 944, 946; Denaro v Rosalia, 50 AD3d 727; Hom v Weintraub, 6 AD3d 579, 580). In addition, the record does not indicate that there are any relevant factual issues warranting a hearing (see Jaffe v Jaffe, 44 AD3d 825, 826).

Accordingly, although the Supreme Court properly denied those branches of the defendants' motion which were to hold the plaintiff in criminal contempt pursuant to Judiciary Law § 750(A) and in civil contempt pursuant to CPLR 5104, the court also should have denied that branch of the motion which was to hold the plaintiff in civil contempt pursuant to Judiciary Law § 753."