The instant action resulted from a real estate contract that never closed. I granted summary judgment to plaintiff and made the following order on December 21, 2006, in relevant part:

that within 10 days after notice of entry of this order is served by

plaintiff upon defendants, defendant Regina Felton shall refund to

plaintiff Faith Astrada, by payment to her present counsel, James T.

Gerardi, Esq., plaintiff's $30,000.00 down payment, together with

accrued interest from April 19, 2005 to October 28, 2005, and

statutory interest, at the CPLR § 5004 rate of 9 per cent, from

October 28, 2005 to the date of refund.

Further, I ordered a hearing on February 9, 2007, pursuant to 22 NYCRR § 130-1.1, to determine if defendant Felton had engaged in "frivolous conduct," and to give defendant Felton "a reasonable opportunity to be heard," before possibly awarding costs and/or sanctions. Astrada v Archer, 14 Misc 3d 1206 (A), 2006 NY Slip Op 52432 (U).

Prior to the hearing, Mr. Gerardi notified Ms. Felton and this Court by mail, on February 1, 2007, that he had served Ms. Felton by first class mail and certified mail on January 3, 2007 with my Decision and Order. The certified mail return receipt shows that Ms. Felton's office received the Decision and Order on January 7, 2007. Ms. Felton filed a Notice of Appeal on January 22, 2007. Thus, there can be no doubt that Ms. Felton was served with my December 21, 2006 Decision and Order.

At the February 9, 2007 hearing, both Ms. Felton and Mr. Gerardi were present.

Ms. Felton admitted that she had not returned the $30,000.00 down payment together with accrued and statutory interest. Defendant Felton unequivocally stated that she had the $30,000.00 down payment in her escrow account. She presented no testimony or evidence that a [*2]stay of enforcement, pursuant to CPLR § 5519, pending her appeal had been granted.

I reserved decision on whether or not Ms. Felton engaged in "frivolous conduct" and if so, what costs and sanctions shall be awarded. However, with respect to Ms. Felton's failure to comply with my Decision and Order to return the $30,000.00 down payment, together with accrued and statutory interest from April 19, 2005, it appears that Ms. Felton is engaging in conduct that may result in a finding that Ms. Felton is guilty of civil contempt.

Judiciary Law § 753 (A) states that:

(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: 1. An attorney, counsellor, clerk, sheriff, coroner, or other

person, in any manner duly selected or appointed to perform a judicial

or ministerial service, for a misbehavior in his office or trust, or for a

wilful neglect or violation of duty therein; or for disobedience to a

lawful mandate of the court, or of a judge thereof, or of an officer

authorized to perform the duties of such a judge . . .

3. A party to the action or special proceeding, an attorney,

counsellor, or other person, for the non-payment of a sum of money,

ordered or adjudged by the court to be paid, in a case where by law

execution can not be awarded for the collection of such sum except

as otherwise specifically provided by the civil practice law and rules;

or for any other disobedience to a lawful mandate of the court.

[Emphasis added] The Court of Appeals in McCormick v Axelrod, 59 NY2d 574, 582-583 (1983), instructed that "[c]ivil contempt has as its aim vindication of a private right of a party to litigation and any penalty imposed upon the contemnor is designed to compensate the injured private party for the loss of or interference with that right (State of New York v Unique Ideas, 44 NY2d 345 [1978])." See Department of Envtl. Protection of City of NY v Department of Envtl. Conservation of State of NY, 70 NY2d 233, 239 (1987); Consolidated Rail Corp. v MASP Equipment Corp., 67 NY2d 35 41 (1986). In McCain v Dinkins, 84 NY2d 216 (1994), the Court held, at 226, that to sustain civil contempt, there must be: (1) a "lawful judicial order expressing an unequivocal mandate must have been in effect and disobeyed"; (2) "the party to be held in contempt must have had knowledge of the order, although it is not necessary that the order actually have been served upon the party"; (3) and, "prejudice to the rights of a party to the litigation must be demonstrated." See Sterngass v Town Bd. of Town of Clarkstown, 27 AD3d [*3]550 (2d Dept 2006); Board of Educ. of the City School Dist. of City of New York v Mills, 25 AD3d 952, 954 (3d Dept 2006); Rienzi v Rienzi, 23 AD3d 447 (2d Dept 2005) Giorgini v Goldfield, 22 AD3d 800 (2d Dept 2005); Laland v Edmond, 13 AD3d 451 (2d Dept 2004); Pantelidis v Pantelides, 297 AD2d 791 (2d Dept 2002); Bay Parkway Super Clean Car Wash, Inc. v Accurate Auto Repair, Inc., 220 AD2d 549 (2d Dept 1995).

In the instant action, Ms. Felton explicitly admitted in Court on February 9, 2007 that she disobeyed my December 21, 2006 Decision and Order, by not returning the $30,000.00 down payment, together with accrued and statutory interest to plaintiff's attorney, Mr. Gerardi. Clearly, defendant Felton has knowledge of my December 21, 2006 Decision and Order since she filed an appeal with the Appellate Division, Second Department. Further, plaintiff Astrada has been prejudiced by her loss of the enjoyment of the $30,000.00 down payment that should have been returned to her in October 2005, after the real estate contract for the purchase of 70 Clifton Place, Brooklyn, New York, did not close.

Despite her January 22, 2007 appeal of my December 21, 2006 Decision and Order, it appears that defendant Felton is engaging in wilful conduct by her noncompliance. In Gloveman Realty Corp. v Jeffreys, 29 AD3d 858, 858-859 (2d Dept 2006), the Court directed that "[a] party is obligated to comply with a court order, however incorrect the party may consider that order to be, until that order is set aside, either by appeal or otherwise, so long as the court issuing the order had jurisdiction to do so." Thus, with no stay in place while my December 21, 2006 Decision and Order is being appealed, defendant Felton must comply with my order to pay back the $30,000.00 down payment, together with accrued and statutory interest. Matter of Bickwid v Deutsch, 229 AD2d 553 (2d Dept 1996); Busters Cleaning Corp. v Frati, 203 AD2d 409 (2d Dept 1994).

Defendant Felton, to avoid being held in civil contempt for violation of my December 21, 2006 Decision and Order must pay to plaintiff Astrada's attorney $30,000.00, and accrued and statutory interest. The total due today is $33,702.11 (the $30,000 contract down payment; $195.84 accrued interest at 1.23% from April 19, 2005 to October 28, 2005 [$1.02 per day for 192 days]; $3,506.27 statutory interest at 9% from October 28, 2005 to February 14, 2007 [$7.3972 per day for 474 days]). It appears that Ms. Felton's conduct falls within the parameters of the January 30, 2007 decision of the Appellate Division, Second Department in Tihanyi v Grimando, ___ AD3d ____, 2007 NY Slip Op 00629. The Court held that "[t]o sustain a finding of civil contempt based upon a violation of a court order, it must appear with reasonable certainty that the party charged has violated a clear and unequivocal mandate' (Bay Parkway Super Clean Car Wash, Inc. v Accurate Auto Repair, Inc., 220 AD2d 549, 550; see McCormick v Axelrod, 59 NY2d 574, 583)."

Accordingly, it is

ORDERED that defendant Regina Felton, Esq. may be found guilty of civil contempt, in violation of Judiciary Law § 763 (A), if 14 days after notice of entry of this order is served by plaintiff upon defendant Regina Felton, Esq., defendant Regina Felton, Esq., has not refunded to plaintiff Faith Astrada, by payment to her counsel, James T. Gerardi, Esq., plaintiff's $30,000.00 down payment, together with accrued interest from April 19, 2005 to October 28, 2005, and [*4]statutory interest, at the CPLR § 5004 rate of nine per cent, from October 28, 2005 to the date of refund.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

HON. ARTHUR M. SCHACK

J. S. C.