The following electronically filed documents read on this Order to Show Cause by plaintiff for an Order pursuant to CPLR §5104, punishing defendants Konstantine Vyssas, and 23-69 28th Street Realty LLC, by fine or imprisonment or both, for contempt of Court for their failure to comply with the provisions and directives of the Order entered and docketed in the Office of the Clerk, County of Queens, on December 24, 2020; and Attorney fees for this instant motion: Papers Numbered Order to Show Cause-Affirmation Affidavit(s)-Service-Exhibit(s) EF 42-44 This action involves a dispute over a common driveway. An Order was filed on December 23, 2020, directing defendants within 60 days to “remove the fence on the southern part of the common driveway that hinders ingress and egress on plaintiff’s property”, to “remove the erected A/C unit that extends over two feet and interferes with plaintiff’s rights under the easement,” and “to remove or move at defendants’ cost the wall pipe that hinders access to the driveway.” Defendants were also directed to “keep the common driveway space clear of storage or refuse (garbage) containers.” Defendants subsequently filed a motion to reargue, which was denied by this Court. On March 19, 2021, movant emailed defendant to see if defendants would comply with the Order entered on December24, 2020. Movant never recieved a response to the email. An affidavit of Mr. Fillas Esq., attorney for plaintiff is submitted in support. On March 23, 2021, he spoke with defendants’ counsel who clearly stated that defendants would not comply with this Court’s Order as entered on December 23, 2020. To date, defendants have not complied with this Order. Judiciary Law §753(A)(5) provides in pertinent part as follows: Powers of courts to punish for civil contempt. (A) A court of record has power to punish, by fine and imprisonment, or either a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the Court may be defeated, impaired, impeded, or prejudiced in any of the following cases: (A) (8) In any other case, where an attachment or any other proceeding to punish for a contempt, has been usually adopted and practiced in a court of record, to enforce a civil remedy of a party to an action or special proceeding in that court, or to protect the right of a party. Judiciary Law §753 “To prevail on a motion to punish party for civil contempt, the movant must demonstrate that the party so charged violated a clear and unequivocal court order (see, Judiciary Law §753[A][3]; McCain v. Dinkins, 84 NY2d 216; Matter of McCormick v. Axelrod, 59 NY2d 574; Goldsmith v. Goldsmith, 261 AD2d 276; Matter of CBS Rubbish Removal v. Town of Babylon Sanitation Commn., 249 AD2d 541).” Obadiah v. Shaw, 266 AD2d 520 (2d Dep’t 1999). “If it is determined that the accused has committed the offense charged; and that it was calculated to, or actually did, defeat, impair, impede or prejudice the rights or remedies of a party to an action…the court…must make a final order directing that he or she be punished by fine or imprisonment, or both.” Judiciary Law §770. In this action the Court has determined that defendants have failed to comply with the Order filed on December 23, 2020. No opposition has been filed. Accordingly, the motion is granted and it is ORDERED, that defendants are held in civil contempt and are fined the sum of $250.00 to be paid to Sacco and Filas at 31-19 Newtown Ave, 7th Floor Astoria New York 11102, attorneys for plaintiff within fifteen (15) days of service of a copy of this order with notice of entry on defendants; and, it is further ORDERED, that defendants are to comply with the Order filed December 23, 2020, and it is further ORDERED, defendants may purge this contempt by complying with the Order filed December 23, 2020, within fifteen (15) days of being served a copy of this Order with notice of entry; and, it is further ORDERED, that plaintiff shall serve defendants a copy of this Order with notice of entry, via certified mail return receipt requested, within ten (10) days of entry of this Order by the Clerk of the Court; and it is further ORDERED, that upon failure to comply, plaintiff 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 defendant KONSTANTINE VYSSAS, and to keep him committed in custody in the common or county jail in which he shall be found and within forty-eight (48) hours from the time of arrest, exclusive of weekends and holidays, and for him to be brought before the undersigned for a hearing at IAS Part 34 of the Supreme Court, Queens County. Dated: June 7, 2021
