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TOWN SHOULD HAVE BEEN HELD IN CONTEMPT FOR FAILURE TO BUILD A FENCE IN ACCORDANCE WITH A STIPULATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the town should be held in contempt for failure to erect a fence on town land in accordance with a stipulation. Plaintiff had requested the fence because people were crossing town land to trespass on plaintiff’s property:

“In order to sustain a finding of civil contempt, it is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes or prejudices the rights of a party” … .

In order to adjudicate a party in civil contempt, a court must find: (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the party against whom contempt is sought disobeyed the order, (3) that the party who disobeyed the order had knowledge of its terms, and (4) that the movant was prejudiced by the offending conduct… . The party seeking a finding of civil contempt must prove these elements by clear and convincing evidence … .

Here, the plaintiff established by clear and convincing evidence that the so-ordered stipulation clearly expressed an unequivocal mandate to construct a fence… , that the Town had knowledge of the stipulation and nevertheless disobeyed it, and that the plaintiff was prejudiced by the offending conduct.

In opposition, the Town failed to refute the plaintiff’s showing or to offer evidence of a defense such as an inability to comply with the order … . Palmieri v Town of Babylon, 2018 NY Slip Op 08317, Second Dept 12-5-18

CIVIL PROCEDURE (TOWN SHOULD HAVE BEEN HELD IN CONTEMPT FOR FAILURE TO BUILD A FENCE IN ACCORDANCE WITH A STIPULATION (SECOND DEPT))/CONTEMPT (TOWN SHOULD HAVE BEEN HELD IN CONTEMPT FOR FAILURE TO BUILD A FENCE IN ACCORDANCE WITH A STIPULATION (SECOND DEPT))/MUNICIPAL LAW (CONTEMPT, TOWN SHOULD HAVE BEEN HELD IN CONTEMPT FOR FAILURE TO BUILD A FENCE IN ACCORDANCE WITH A STIPULATION (SECOND DEPT))

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