Recitation as required by CPLR 2219(a) of the papers considered in the review of this Motion: Papers Numbered Order to Show Cause & Affts 1 Opposition 2 Reply & Affidavits 3 Sur-Reply Supplemental Affidavits DECISION AND ORDER Upon the foregoing cited papers and after oral argument, the Decision/Order on petitioner’s post-eviction motion brought by order to show cause to hold the respondent in contempt for its failure to obey an order of this Court, and for other and further relief is as follows: 3824 LLC (hereinafter “3824″ or petitioner) commenced this commercial nonpayment summary eviction proceeding against the respondent based upon the respondent’s failure to pay $23,726.21 in rent and additional rent and sought to recover possession of the premises located at 23-10A 38th Avenue Warehouse, Long Island City, NY 11101 (hereinafter “subject premises”) together with a money judgment and related relief. AFANDINA TRADING CORP. (hereinafter “AFANDINA” or respondent) interposed an answer on or about August 16, 2019. On September 13, 2019, the parties entered into a two-attorney stipulation (hereinafter “stipulation”), in which AFANDINA consented to the jurisdiction of the court, that the petitioner shall have a judgment of possession and final money judgment in the amount of $36,990.57, which represented rent through September 30, 2019 and included $750.00 legal fees. A warrant of eviction was issued forthwith, with a stay of execution through and including October 10, 2019 for payment of the October 2019 rent, together with taxes and other charges. If paid, the warrant would be further stayed to October 31, 2019 for payment of $36,990.57 to satisfy the judgment. Respondent defaulted on the stipulation and attempted to, and/or did, actually bring several orders to show cause after the execution of the stipulation. Although the respondent was given a court ordered extension to pay the balance due under the terms of the stipulation by January 10, 2020, the respondent failed to comply yet again. The extension of time to pay was granted on condition that the respondent pay attorney’s fees in the amount of $1,000.00 on or before December 16, 2019. The Court’s order further stated “[i]f respondent fails to make the attorney’s fee payment or any other payment due pursuant to this Order, petitioner may evict under the notice provisions of the stipulation.” Respondent continued its default and was evicted on January 31, 2020. Respondent’s fourth order to show cause was filed on February 5, 2020 (hereinafter “OSC #4″). That application was submitted post-eviction. Under the terms of the order to show cause, during the pendency of the application, the respondent was granted an interim stay which precluded the petitioner from any further actions or proceedings in this matter. On February 14, 2020, this Court denied respondent’s post-eviction OSC #4 and vacated the stay. Nonetheless, the Court permitted the respondent access on February 20th and February 21st to retrieve the personal property that remained. In the instant order to show cause, according to the petitioner, the respondent re-entered the subject premises after having been evicted and removed various items on February 13th, the day before this Court denied OSC #4 and vacated the stay. On this set of facts, together with respondent’s failure to make the payments under the stipulation and the order of February 14, 2020, petitioner seeks to hold the respondent in contempt of this Court’s order, as well as the interim stay issued in conjunction with OSC #4. Petitioner argues that on February 13, 2020, it maintained a lien on the property of the respondent. Moreover, petitioner asserts that contempt is appropriate because the respondent removed items on which petitioner had this lien. In support of its argument that contempt is the appropriate remedy where a party has retrieved property in the custody of the sheriff by virtue of a warrant of attachment petitioner cites Judiciary Law §753(4). Similarly, petitioner relies upon In Matter of Black, 138 App. Div. 562, 123 NYS 371 (2nd Dep’t. 1910), in support of its proposition that where a party holds an equitable lien based upon a court order and that order is violated by a taking of property in violation of that order, contempt is the appropriate remedy. Petitioner’s recitation of the law is correct where such an order exists. However, petitioner has overlooked one significant issue in the matter at hand, i.e. petitioner held no such order. The stay issued in conjunction with the respondent’s OSC #4 only prevented the petitioner from taking action, not the respondent. Therefore, the respondent could not have been in violation of the stay. Assuming for a moment that the facts as set forth by petitioner are true*, in essence, petitioner is asking this Court to hold the respondent in contempt for actions it took a day before the order was issued. The ultimate order resulting from OSC #4 was issued on February 14, 2020. The alleged retrieval of property from the subject premises was on February 13, 2020. As perturbed as the petitioner may be at the respondent for its poor behavior, even the petitioner must recognize the absurdity of such a notion. Without articulating this directly, it seems as though petitioner is also seeking contempt against the respondent for its failure to make full payment under the stipulation and money judgment of September 13, 2019. Contempt for failure to pay a judgment is not the appropriate relief and debtors’ prisons were abolished in this country in 1833. Enforcement of the money judgment through CPLR Article 52. That is not to say the petitioner is without a means of relief. Pursuant to the parties’ lease, Saeed Hassanein executed a personal guaranty. While this Court is not ruling on the enforcement of petitioner’s judgment or other claims by means of the guaranty, the petitioner is not precluded from pursuing them in a suitable forum. Similarly, if the petitioner wishes to pursue its claim that the respondent’s representative(s) entered the subject premises after the lawful eviction and removed petitioner’s possessions of value, the petitioner is not prevented from contacting the Queens County District Attorney’s Office to prosecute criminal charges. In conclusion, the petitioner’s order to show cause dated March 4, 2020 is denied without prejudice to petitioner pursuing its claims in an appropriate forum and manner. This constitutes the Decision and Order of this Court. October 19, 2020
