CIVIL CONFINEMENT FOR CONTEMPT BY LANDLORD

 Allen v. 219 24th ST. LLC, 2023 NY Slip Op 32232 - NY Co City Court, Civil Court 2023:

"MICHELLE D. SCHREIBER, JHC.

After trial in this HP proceeding, pending since July 2019 as a result of three vacate orders placed by the New York City Department of Buildings ("DOB") as to the three buildings at issue herein, in a decision/order dated May 6, 2020 (NYSCEF #6) the respondents/owners were ordered inter alia, to correct the conditions necessary to lift the vacate orders within six months, were found to have engaged in harassment based upon their deferred maintenance of the buildings with the goal of emptying them, and were directed to pay $21,000 to each of the six petitioners.

In December 2020 the petitioners and DOB moved for contempt. In a decision/order dated February 16, 2021 (NYSCEF #47), the motions were granted to the extent of finding there was a prima facie showing of all four elements of civil contempt by the movants, and directing a hearing on the issue of the respondents/owners alleged inability to comply with the prior order of the Court; the hearing was limited to evidence uncovered in November 2020 and thereafter during the partial demolition of the buildings. In addition, the Court ordered a hearing on DOB's motion to enforce three Emergency Orders issued by the Commissioner in December 2020. The hearing was held over several days from May 5 through July 21, 2021. In a decision/order dated September 2, 2021, the Court held inter alia that the respondents/owners were in civil contempt of the May 6, 2020 order; directed the respondents/owners to perform the work required by the DOB Commissioner on the three emergency orders dated December 30, 2020; and allowed them to purge the contempt by complying with the order by March 1, 2022.

DOB thereafter moved by Order to Show Cause dated June 30, 2022 to commit Clara Sokol and Abraham Lokshin to civil jail for civil contempt until they have complied fully with the orders of May 6, 2020 and September 2, 2021; and to assess civil penalties against each respondent in the amount of $1,000.00 per day until they comply with the orders. The motion was granted (NYSCEF #150) to the extent of directing the parties to appear with counsel in Part B for a hearing to determine whether Clara Sokol and Abraham Lokshin should be apprehended and arrested; the sole issue at the hearing was the respondents'/owners' compliance with the decision/order dated September 2, 2021. On the eve of the last hearing date in November 2022, the respondents moved for an extension of time to complete the repairs and have the vacate orders lifted. The motion was denied in a decision/order dated May 22, 2023 (NYSCEF #203). The hearing was conducted over several days from November 2022 through April 2023; posthearing memoranda were submitted on May 1, 2023. Based upon all of the foregoing and the credible testimonial and documentary evidence the Court makes the following findings of fact and conclusions of law.

The respondents' first witness was George Cambourakis, a structural engineer. His testimony was brief as he admitted that during a break in the hearing he had discussed his testimony with his counsel. Mr. Cambourakis testified that he began work on the project in September or October 2021, and that he prepared structural drawings and reports for all three buildings. He claimed to be at the site on a regular basis and yet lacked relevant details about many of the conditions at the building. He attempted to explain his lack of detailed knowledge of plumbing, electrical issues, the roofs and debris removal, by asserting he was focused on the structural issues. He testified that he determined that work should proceed on one building at a time claiming without any evidence that this determination was supported by DOB. He then admitted that DOB never said to do one building at a time, but stated that he stood by his decision. He testified candidly that he was aware that the vacate orders have not been lifted, and admitted that in two of the three buildings very little work had been done, asserting that in one of the buildings the work was 80% complete.

The respondents also called Shalom Rogatsky as a witness. He testified that he is a general contractor and a licensed home improvement contractor. Mr. Rogatsky stated that he began work on the project in September 2021 and claimed that there were issues obtaining materials for the project which caused delays. He then admitted that these issues were present only at the beginning of the work. He admitted that he was unable to get a sufficient number of workers at the site because they wanted too much money. Mr. Rogatsky candidly admitted that work was not completed in the three buildings including electrical, plumbing, boiler replacement and roof work.

The respondents' final witness was Abraham Lokshin, a named respondent and a member of the LLC. Mr. Lokshin began his testimony by admitting that the job was not completed. While asserting that the project has been his whole life in the last couple of years, his candid statement that the job was not complete belied his alleged dedication. He admitted further that the work would not be completed for another three to four months and that he was aware the vacate orders had not been lifted as of the time of his testimony.

At the conclusion of the presentation of testimony by the respondents DOB moved for a directed verdict and presented no evidence.

The respondents were initially given until November 6, 2020 to effectuate all necessary repairs to have the vacate orders lifted. After being found in contempt the respondents were allowed to purge the contempt by doing all necessary work to have the vacate orders lifted by March 2022. As of April 2023 the respondents have failed to purge the contempt and the vacate orders have not been lifted. Accordingly, this Court finds it necessary, in order to compel compliance with the orders of this Court, to direct that respondents Sokol and Lokshin be committed to civil confinement until such time as the contempt is purged. The respondents have been on notice of this potential confinement since the decision/order dated September 2, 2021 which found them in contempt and stated that it is "ORDERED: that upon failure to comply, petitioners and DOB may make an application to the Court which will result in any sworn Sheriff of any County of New York State, to apprehend and arrest Clara Sokol and Abraham Lokshin, and to keep her and him committed in custody in the common or county jail in which he or she be found and within forty-eight (48) hours from the time of arrest, exclusive of weekends and holidays, and for her and him to [be] brought before the undersigned for a hearing at Part B, New York County Civil Court, Room 583 at 111 Centre Street, New York, NY 10013...."

CHILD SUPPORT AND INCARCERATION

There are limits to the court's power.

Matter of Augliera v Araujo, 2020 NY Slip Op 03510, Decided on June 24, 2020 ,Appellate Division, Second Department:

"We agree with the Family Court's determination in an order of disposition dated May 31, 2019 (hereinafter the May 2019 order), after a hearing on May 8, 2019, that the father willfully violated an order of child support dated December 21, 2015. At the hearing, the mother demonstrated that the father willfully violated his support obligations set forth in the child support order (see Family Ct Act § 454[3][a]; Matter of Martinez v Martinez, 44 AD3d 945, 946). In opposition, the father failed to show an inability to pay the support owed (see Matter of Martinez v Martinez, 44 AD3d at 946).

We disagree, however, with the Family Court's imposition of a sentence of incarceration upon its finding of willfulness since the parties agreed at the hearing that the father had paid the full amount due and owing. Although the court is empowered to impose a sentence of incarceration of up to six months for willful failure to comply with a support order (see Family Ct Act § 454[3][a]; Matter of Cox v Cox, 133 AD2d 828), such incarceration may only continue until the offender complies with the support order (see Judiciary Law § 774[1]; Hymowitz v Hymowitz, 149 AD2d 568, 568-569). Here, the court sentenced the father to a period of incarceration of 40 days, to be suspended under certain conditions, after the parties already had agreed that the father had paid all that was due and owing at that time. Under such circumstances, no period of incarceration should have been imposed (see Judiciary Law § 774[1]; Hymowitz v Hymowitz, 149 AD2d at 568-569). Accordingly, since the court imposed a sentence of incarceration in contravention of Judiciary Law § 774(1), that provision of the May 2019 order must be deleted."

SEEKING VISITATION WHILE INCARCERATED

Matter of Irizarry v Jorawar, 2018 NY Slip Op 03360, Decided on May 9, 2018, Appellate Division, Second Department:

"The mother and the father are the parents of two minor children. The father has been incarcerated since December 2005 for his conviction of murder in the second degree. His earliest possible parole date is in 2023. He last saw the children in 2007 or 2008, when they were both under five years old. In 2008, the mother was granted an order of protection against the father for threats he allegedly made against her by mail and telephone. Other than an exchange of correspondence between the father and the mother and children several years ago, there had been no communication between the father and the children since 2010. In 2014, the father filed a petition for visitation with the children. After a fact-finding hearing, at which the forensic evaluator, the mother, and the father testified, the Family Court determined that visitation between the father and the children was not in the children's best interests and directed, instead, that the father be permitted to send mail correspondence to the children at an address to be provided by the mother. The father appeals.

Initially, contrary to the mother's contention, the father is aggrieved by the order since it did not award him the complete relief he requested (see CPLR 5511; Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 544-545).

The Family Court properly denied that branch of the father's petition which sought in-person visitation. The paramount concern when making a visitation determination is the best interests of the children under the totality of the circumstances (see Matter of Wilson v McGlinchey, 2 NY3d 375, 380-381; Matter of Diaz v Garcia, 119 AD3d 682; Matter of Boggio v Boggio, 96 AD3d 834). "[V]isitation with a noncustodial parent is presumed to be in the best interests of a child, even when that parent is incarcerated" (Matter of Georghakis v Matarazzo, 123 AD3d 711; [*2]see Matter of Granger v Misercola, 21 NY3d 86, 90; Matter of Franklin v Richey, 57 AD3d 663, 664). That presumption may be rebutted, however, by demonstrating, by a preponderance of the evidence, that "under all the circumstances visitation would be harmful to the child's welfare, or that the right to visitation has been forfeited" (Matter of Granger v Misercola, 21 NY3d at 91). Here, there is a sound and substantial basis in the record for limiting the father's contact with the children to mail correspondence (see Matter of Granger v Misercola, 96 AD3d 1694, 1695, affd 21 NY3d 86). A preponderance of the evidence demonstrated that visitation would be harmful to the children's welfare."

PARENTING TIME - PARENT IN PRISON

Matter of Jackson v Wylie-Tunstall, 2018 NY Slip Op 01605, Decided on March 14, 2018, Appellate Division, Second Department:

"The father, who is incarcerated, petitioned for visitation with the parties' child. After a hearing on the father's amended petition for visitation, the Family Court granted the amended petition only to the extent of awarding the father visitation by means of written letters sent to the mother's address. The father appeals.

The paramount concern when making a visitation determination is the best interests of the child under the totality of the circumstances (see Matter of LaChere v Maliszweski, _____ AD3d _____, 2018 NY Slip Op 00147 [2d Dept 2018]; Matter of Torres v Pascuzzi-Corniel, 125 AD3d 675). Since visitation determinations necessarily depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded to the Family Court's findings, which should not be set aside unless they lack a sound and substantial basis in the record (see Matter of Clarke v Wiltshire, 145 AD3d 776, 777; Matter of Pierre v Dal, 142 AD3d 1021, 1023).

Here, the child, who was 13 years old at the time of the hearing, had not seen the father since she was an infant and did not want any contact with him. The father did not seek visitation when a custody order was entered on his consent, and the record does not evince any substantial efforts on his part to form a relationship with the child. Moreover, the father's family arranged a telephone call between the child and the father, with whom the child had not spoken since she was three or four years old, without the mother's knowledge or consent, and the father wrote the child letters in which he made inappropriate comments about the child's stepfather, with whom the child has a good relationship. Under these circumstances, the Family Court's determination to grant [*2]the amended petition only to the extent of awarding the father visitation by means of written letters sent to the mother's address had a sound and substantial basis in the record.:

FAILURE TO PAY CHILD SUPPORT - INCARCERATION

MATTER OF STRADFORD v. Blake, 2016 NY Slip Op 5651 - NY: Appellate Div., 2nd Dept. 2016:

The mother commenced this proceeding against the father, alleging that he was in willful violation of a child support order dated June 30, 2006. Following a hearing, the Support Magistrate found that the father was in willful violation of the order of support and issued an order of disposition recommending that the court consider a period of incarceration. The Family Court, in effect, confirmed the Support Magistrate's findings of fact, granted the mother's petition, and issued an order of commitment, committing the father to the custody of the Nassau County Correctional Facility for a period of six months unless he paid the purge amount of $112,342.80. The father appeals.

Although the appeal from so much of the order of commitment as directed that the father be incarcerated must be dismissed as academic, the appeal from so much of the order of commitment as confirmed the finding and determination that the father was in willful violation of the order of support is not academic in light of the enduring consequences which could flow from the finding that he violated the order of support (see Matter of Dezil v Garlick, 136 AD3d 904; Matter of Rodriguez v Suarez, 93 AD3d 730; Matter of Westchester County Commr. of Social Servs. v Perez, 71 AD3d 906, 907).

Under Family Court Act § 454(3)(a), which relates to "willful" failures to obey support orders, a "`failure to pay support as ordered itself constitutes prima facie evidence of a willful violation'" (Matter of Dezil v Garlick, 136 AD3d at 905, quoting Matter of Powers v Powers, 86 NY2d 63, 69; see Family Ct Act § 454[3][a]). This means that "`proof that respondent has failed to pay support as ordered alone establishes petitioner's direct case of willful violation, shifting to respondent the burden of going forward'" (Matter of Dezil v Garlick, 136 AD3d at 905, quoting Matter of Powers v Powers, 86 NY2d at 69).

Here, the mother presented proof that the father failed to pay child support as ordered (see Matter of Saintime v Saint Surin, 40 AD3d 1103). The burden of going forward then shifted to the father to offer competent, credible evidence of his inability to make the required payments (see Matter of Powers v Powers, 86 NY2d at 69; Matter of Dezil v Garlick, 136 AD3d at 905). The father failed to sustain his burden. The Support Magistrate found the father to be less than credible. Even assuming the truth of the father's contention that he had been unemployed in his chosen field since he lost his license to trade stocks and that he could not perform physical labor due to his heart condition, he failed to present any evidence that he had made a reasonable and diligent effort to secure employment. Thus, the father failed to meet his burden of presenting competent, credible evidence that he was unable to make payments as directed (see Matter of Dezil v Garlick, 136 AD3d at 905; Matter of Nassau County Dept. of Social Servs. v Henry, 136 AD3d 639; Matter of Girasek-Brick v Girasek, 127 AD3d 861; cf. Matter of Westchester County Commr. of Social Servs. v Perez, 71 AD3d 906). Moreover, the father did not regularly pay child support between 2001, when the first order directing that he pay child support was entered, and 2014, when the hearing was held on the mother's petition. The father failed to provide proof that he applied for and was denied Social Security disability benefits even though directed to do so by the Support Magistrate. In addition, the Support Magistrate properly found that the father lacked credibility in his testimony that he had no income or assets from other sources.

Accordingly, the Family Court properly, in effect, confirmed the determination of the Support Magistrate that the father willfully violated the order of support (see Matter of Dezil v Garlick, 136 AD3d at 905).

HOW INCARCERATION CAN AFFECT VISITATION

McIntosh v. Clary, 129 A.D.3d 1392, 12 N.Y.S.3d 356 (Third Dept. 2015):

"The parties are the parents of four children, born in 2005, 2006, 2008 and 2009. Since 2010, petitioner (hereinafter the mother) has had sole custody of the children pursuant to an order that permitted respondent (hereinafter the father), who was incarcerated, to have telephonic contact with the children. In 2012, after a fact-finding and Lincoln hearing, Family Court determined that the telephone calls were emotionally distressing to the children and granted the mother's petition to modify the order by limiting the father's contact to monthly, monitored written communication with the two oldest children.FN1 Ten months later, the father commenced this proceeding to modify the 2012 order, seeking prison visitation and reinstating telephonic contact with the two oldest children. Family Court granted the mother's motion to dismiss the petition for failure to allege a change in circumstances. The father now appeals .FN2

We affirm. As the party seeking to modify a recent, existing visitation order, "the father was required to provide sufficient evidence in support of the petition to show that there had been a change in circumstances demonstrating a real need for a change to ensure the children's best interests" (Matter of Hall v. Hall, 61 AD3d 1284, 1285 [2009]; see Matter of Ruple v. Cullen, 115 AD3d 1123, 1123 [2014]). The only changes in circumstances alleged in the father's petition were that he had received a certificate for attending substance abuse meetings and positive inmate progress reports and completed vocational training, and that his request for the children to participate in a prison program had been denied. Even accepting these allegations as true, they do not set forth a change in circumstances that would warrant the relief sought (see Matter of Januszka v. Januszka, 90 AD3d 1253, 1254 [2011]). The bare fact that the father had availed himself of prison services did not require a reexamination of the childrens' best interests, particularly where the changes alleged do not address their emotional reaction to telephonic communication from the father, which was the reason for limiting contact in the 2012 order. Moreover, although the father was allowed monthly communication with the two oldest children, he had written to them on only two occasions in the 10 months that had elapsed between the 2012 order and this proceeding. Given the circumstances, Family Court did not err in dismissing the petition without an evidentiary hearing (see Matter of Marquis v. Washington, 86 AD3d 753, 754 [2011]; Matter of Heater v. Heater, 81 AD3d 1017, 1017 [2011]).

FN1. We subsequently affirmed this order (Matter of Clary v. McIntosh, 117 AD3d 1285, 1286 [2014]).

FN2. Inasmuch as the father has been released to parole supervision, his request for visitation at the prison is moot (see Matter of Samantha WW. v. Gerald XX., 107 AD3d 1313, 1315 [2013])."