An Order to Show Cause originally returnable on June 16, 2005, was brought by Plaintiffs seeking a finding of civil contempt, damages and enforcement of a permanent injunction regarding the operation and use of the Roslyn Country Club.

Plaintiffs allege that Defendant Corona operated a "day camp," "tennis camp" and allowed persons, entities and/or other nonmember to utilize the Club in violation of an amended judgment of the Supreme Court, Nassau County, entered April 22, 1959, as modified by the Appellate Division, 7 AD2d 922, (2d Dept., 1959) and affirmed by the Court of Appeals at 7 NY2d 894 (1960) (the Judgment).

A hearing on the aforementioned issues was held on October 5, 6, 10, and 17, 2006. Post-Trial Memoranda of Law were due by November 3, 2006 and reply memos were submitted on November 13, 2006.

Plaintiffs produced several homeowners including Rochelle Garnock, Andrew Rothstein, [*2]Heather Schwartz, Caryn R. Fink, Susan Pernick, Carol Konigsberg and Robyn Schreiber as well as Nick Brebenel, a tennis pro (Brebenel), Rabbi Yacov Reiter of the Chabad of Roslyn, ( Rabbi) and Manoucher Malekan, the alleged property owner/manager (Malekan) to prove the claims. Defendant rested at the close of Plaintiffs' case.

It is Plaintiffs' position that the use of the swimming facilities at the Roslyn Country Club by children participating in a summer camp sponsored the Chabad of Roslyn (Chabad) and the use of the tennis courts by Nick Brebenel (Brebenel) and his students violated the Judgment, in that those activities allegedly infringed upon the individual Plaintiffs' easements.

Ms. Garnock testified that she first joined the Club in 2004. On occasion she noticed the presence of a school bus and approximately seventy-five (75) children at the pool, as well as some adults. She testified that she did not go to the pool every day, but that when she did go and observed the buses she did not stay. On cross-examination she testified that she was not denied access and that she could have used the facilities except on those occasions when she testified that the pool was closed, had no water in it, and a lifeguard was not present. The pool closure occurred two to three times in 2004, as well as in 2005. She further testified that she made complaints regarding the conditions of the pool, the fact that the snack bar was closed and that the playground was in a state of disrepair to the manager of the Club in 2004 and 2005 and spoke directly with Malekan regarding her complaints as well.

Mr. Rothstein testified that in 2004, he received an advertisement for the Chabad Summer Camp depicting and advertising the use of the Roslyn Country Club pool as part of the camp's swimming program, took pictures of the school buses allegedly used to transport the children and took pictures of the Chabad children at the pool, during the 2004 summer season. Rothstein further testified that the basketball court was in a state of disrepair. Rothstein observed Brebenel and several teenagers playing tennis. Rothstein paid dues in 2004 and 2005 and went to the Club two to three times a week in 2004 and once or twice a week in 2005 and was never denied access to the facilities, except on those occasions when the pool was closed.

Heather Schwartz testified that as the parent of a physically disabled child, she could not enjoy the pool when the Chabad children were present because there was too much activity and that level of activity was emotionally upsetting to her child. Ms. Schwartz had been a member of the Club in the past, but did not join in 2004, 2005 or 2006.

Caryn Fink, Co-President of the Civic Association believed she joined the Club in 2004, but did not join in 2005 or 2006. She acknowledged seeing the Penny Saver advertisement that the pool would be used by the Chabad children in 2005.

Susan Pernick testified that the group of children using the pool interfered with her ability to walk laps in the pool, in that the children jumped in front of her or otherwise blocked her path. She had joined in 2004, 2005 and 2006 as a nonresident of the community. Ms. Pernick testified to seeing a group of at least fifty (50) children using the pool, for at least two (2) hours several times a week for at least one (1) month. Ms. Pernick complained to Malekan [*3]about the condition of the bathrooms, the lack of sufficient lifeguards and the presence of the children in the mornings. Ms. Pernick admitted that she was never told that she could not use the pool and that she saw children and their parents playing in the shallow end of the pool, though she testified that she stopped going to the pool on the days the Chabad children would likely be present.

Carol Konigsberg testified that she had been a member of the Club for several years, up to and including 2004 and frequently used the pool. She found the pool too crowded when the Chabad children were there and did not return on days they were at the pool. In 2005, she joined a nearby club with similar facilities, at a cost of $2,000.00 for the year. While she was never denied access to the Club, the pool was, on occasion, closed for repairs in 2004. She further testified that she did not bring a guest as often as she would have liked and that she avoided the Club on days when the Chabad children would be present.

Robyn Schreiber, a homeowner, was Captain of the Women's Tennis Team at the Club in 2004. She testified that Nick Brebenel was the Tennis Pro in 2004 and 2005, but that he was rarely there. She acknowledged that the tennis team had priority when it came to using the courts and that Brebenel frequently had ten to fifteen people playing tennis in the afternoon. She recognized only one or two students as members of the community. She acknowledged that Brebenel repaired the tennis courts in 2004. Ms. Schreiber testified that she regularly played tennis at the Club in 2004, 2005 and 2006, that she was never denied access and that on days the tennis team had matches she would advise Brebenel that the courts would not be available to him until a specified hour and if Brebenel or his other coaches and students arrived early, they were not permitted on any court during the match.

Nick Brebenel testified that he was the head tennis pro at the Roslyn Country Club in 2004, 2005 and 2006. He used a variety of facilities for his tennis program, including, but not limited to, the Roslyn Country Club. In 2004, he paid the Roslyn Country Club three payments of $5,000.00, which included a family membership and was required to and did, repair the tennis courts. He was confident that his reputation as a tennis pro would encourage new members to join the Club. It does not appear that his reputation or the additional exposure increased membership, though he stated that some of the women on the tennis team took lessons with him. In 2005, his membership fee was reduced to $5,000.00, which again included his family. He testified that his use of the tennis courts was restricted and that he would get calls from the tennis team to advise him of the availability of the tennis courts when the team was finished with the courts. Brebenel also limited his use of the courts if a member showed up to play, so that members were never denied access to the courts.

Rabbi Yakov Reiter was the Director of the Chabad of Roslyn summer camp in 2004 and 2005. The summer camp had a variety of activities and the Rabbi arranged for the children to swim at different locations, including the Club. In 2004, he and his family joined the Club and paid dues totaling $2,900.00, which included the guest fees for the Chabad children to use the pool. In addition, he paid to have a swimming instructor available at the Club for his guests. [*4]

Plaintiffs called Manoucher Malekan.Malekan testified that he sent a copy of the rules out with every membership. He did not recall ever restricting the number of guests and that the capacity of the Club was approximately 680 families. Malekan testified that Rabbi Reiter resided in Roslyn and became a member of the Club. A guest fee was charged for the Chabad children coming to the Club to swim. Malekan testified that the children came to the Club approximately three times per week, between the week after July 4 and about the week of August 15, for about ninety minutes in the morning and, on one occasion, ninety minutes in the afternoon. The Club was opened from Memorial Day until Labor Day. It was uncontroverted that the Rabbi and Brebenel joined the country club and paid guest fees to the Roslyn Country Club. Malekan, a sophisticated businessman, testified that the arrangements with Brebenel and Rabbi Reiter were made with the expectation that new members would join the Club due to the expanded exposure to the facility.

It would seem that the members of the Civic Association, many of whom are attorneys, chose not to visit the Club at times when it was crowded. They urge this Court to find that the crowded condition and their complaints regarding the operation and maintenance of the Club infringed on their easements in violation of the Judgment. This court notes that similar arguments have been raised over the years in numerous proceedings between the parties and plaintiffs have not prevailed. Indeed, Justice Joseph A. Suozzi suggested that Plaintiffs' remedy was to seek more efficient and equitable use of the facilities so that all members could share equally in the enjoyment of same and that allowing non resident members to stand in the place of resident members does not eliminate the easements. Justice Alexander Berman, in an oral decision, modified the judgment by approving an application to raise the dues in exchange for reducing the number of non resident members. Justice Berman later vacated that order due to a jurisdictional defect and neither party renewed the application.

It is well settled that a party seeking to hold another in civil contempt bears the burden of proof. (Vujovic v. Vujovic, 16 AD3d 490, 791 NYS2d 648, (2d Dept., 2005); Rupp-Elmasri v. Elmasri, 305 AD2d 394, 758 NYS2d 524 (2d Dept., 2003); McCain v. Dinkins, 84 NY2d 216, 639 NE2d 1132, 616 NYS2d 335 [1994]).

"To prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party so charged violated a clear and unequivocal court order" (Muwwakkil v. Metropolitan Suburban Bus Auth., 289 AD2d 309, 734 NYS2d 586 (2d Dept., 2001) citing Obadiah v. Shaw, 266 AD2d 520, 521, 699 NYS2d 124 (2d Dept., 1999); see Judiciary Law § 753 [A]), and that a right of another party to the litigation was thereby prejudiced. (Gloveman Realty Corp. v. Jefferys, 29 AD3d 858, 815 NYS2d 687 [2d Dept., 2006]). The contempt must be proven by clear and convincing evidence. (Lutz v. Goldstone, 31 AD3d 398, 819 NYS2d 64 [2d Dept., 2006]).

The order alleged to have been violated provides ". . . the owners of all of the 668 residential lots in said community, and all persons holding title to said lots in said community in the future under or through such owners, have easements giving them the right to enter in, upon or over the entire premises . . . to use said Club premises and all facilities and buildings thereon [*5]as a Country Club, exclusively to them and their immediate families except as hereinafter provided . . . "

It was further ordered that the "Club Premises and facilities shall not be used by any persons other than those hereinabove set forth, unless they are guests of the 668 or less property owners and nonresident entitled to use said premises under this decree (said guests being limited in number by vote of said 668 or less persons), but this guest limitation shall not be applicable to specific functions arranged for by members and held at the Club, and it is further

ORDERED, ADJUDGED and DECREED that the defendants, their agents, servants and employees be and they are hereby enjoined and restrained from committing any act or acts in abrogation or of interference in any way with the foregoing easements and from committing any act or acts curtailing or intending to curtail, either directly or indirectly, the full and complete enjoyment of said easements or the use of said premises, facilities and buildings as provided in this decree, and from offering the Club Premises or facilities for use to and from the soliciting of business from persons other than those hereinabove set forth and except as above provided, and from opening said premises or facilities to the public generally, except to conduct catered affairs at the Clubhouse for nonmember in such manner and to such extent as does not impair the easements set forth in this decree . . . "

The Appellate Division recognized that the Club is a commercial venture, which must be operated in such a manner as not to infringe upon the individual Plaintiff's easements (Civic Association at Roslyn Country Club, Inc. v. Levitt & Sons, Inc., 7 AD2d 992, 993, 184 NYS2d 159 [2d Dept., 1959]), and granted Defendants the right to operate a catering facility. It further recognized that the admission of nonresident to fill the membership rolls, up to a maximum of 668, accords with the intent of the creators of the easements. (Id.)

Inasmuch as the majority of residents of the community did not exercise their rights to the foregoing easements, the Defendant properly permitted nonresident members and their "immediate family" to join and use the Club facilities. Defendant was permitted, pursuant to the decree, to charge a nonresident member "such dues as defendants may care to fix" (Judgment). It does not appear that there is a set amount for nonresident dues, but both the Rabbi and Brebenel paid dues to the Roslyn Country Club in varying amounts during the seasons in question.

Plaintiffs, as they did in the earlier proceedings, again complain that overcrowding infringes on their easements and that the Club lacks the privacy and exclusivity promised by Levitt more than fifty years ago. The issue raised herein is whether the agreements by the owner and non resident members, permitting the use of the pool by the Chabad children and the tennis courts by Brebenel's students, under the guise that they were guests of members, are an infringement of the easements found to exist in 1959. Arguably, these uses could be considered another commercial venture, like the catering facility, for which a special exception was made by the court in Civic Association at Roslyn Country Club, Inc., supra , however no such exception was made for the use of the pool and tennis courts by the general public. Alternatively, the tennis [*6]lessons and use of the pool by the Chabad children may well be simply an abuse of the privileges of membership and perhaps, should be prohibited by the rules of the club.



Turning now to Plaintiffs' current allegations of commercial use of the Club and poor upkeep and management, this Court will address the use of the tennis courts and the pool separately. The complaints regarding the maintenance and operation of the property are not properly before this court and will not sustain a finding of contempt. Plaintiffs did not take exception to having a tennis pro at the Club. In fact, in a Stipulation, which the Court takes judicial notice of, settling litigation between the parties in May of 2004, the parties agreed that the tennis pro would be in charge of the courts' area for the 2004 Club season. Plaintiffs now contend however, that Brebenel, the tennis pro and member, cannot bring guests to the Club for the purpose of providing tennis lessons to his guests. There is no such provision in the Judgment, in fact the Judgment expressly provides that members may bring guests and does not place specific restrictions on the members' use of the club. Furthermore access to a tennis pro at a country club, coupled with private lessons for members and guests, is harmonious with the country club lifestyle. This Court does not find that such conduct infringes on the Plaintiffs' easements.

The use of the swimming pool by children is also consistent with the normal activities of a country club, and this Court does not find that such use abrogates or interferes with Plaintiffs' easements. Resident members could easily have children's birthday parties at the Club pool, involving large numbers of children and that conduct clearly would not constitute a violation of the injunction. In this case, the Rabbi became a member of the Club and as such, the children were his guests. The Rabbi, however, did not accompany his guests to the pool, and it would appear that his presence should be a prerequisite to the admission of his guests. If that is the case, it goes to the operation of the Club, which is not within this court's jurisdiction and cannot be the basis for a finding of contempt. Malekan did knowingly permit the Rabbi to join the Club with the understanding that many children would be using the facility. Utilizing such a "loophole" whether it is for charitable purposes, promotional in nature - to encourage more resident membership - or purely commercial, which was not adequately established, cannot be said to violate a clear unequivocal mandate. Members' easements were not infringed on anymore than if all 668 residential families joined and arrived each day (or three times per week) at the opening of the pool. Inevitably, some families would opt not to go to the Club during peak periods of use, as was the case with the Plaintiffs' witnesses herein.

The Judgment clearly provided for the use of the premises by members and their guests and contemplated specific functions arranged for by members and held at the Club. Brebenel and the Rabbi independently arranged for their guests to participate in the specific functions complained of, to wit: tennis lessons at the Club and swimming in the pool, respectively, and thus since such functions were permissible pursuant to the Judgment, there can be no finding of contempt under the facts established at the hearing.

The Judgment enjoined Defendants from offering the Club Premises or facilities for use to and from the soliciting of business from persons other than those set forth therein. It does not [*7]appear from the evidence adduced at the hearing that Malekan solicited the Chabad to utilize the pool, or that he solicited students for Brebenel's tennis lessons. The Rabbi and Brebenel, as members of the Country Club, were persons permitted to use the Club and thus the prohibition of soliciting business is inapplicable. It was uncontroverted that Malekan did not share in any of the proceeds paid to the Chabad or Brebenel nor did he solicit business for their benefit.

Under the facts presented at the hearing, consideration of the testimony and after reviewing all of the evidence submitted by the parties, this Court finds that an adjudication of civil contempt is not warranted in that Plaintiffs failed to establish by clear and convincing evidence that Defendant violated a clear and unequivocal court order and that such conduct was calculated to or actually did defeat, impair or prejudice the rights and remedies of the Plaintiffs.

It is also noted that Plaintiffs failed to amend the caption to name the current owner and operator of the property in question, nor has Plaintiff proven that Corona Realty Holdings, Inc., is the owner of the property and therefore a successor in interest, bound by the judgment in question. To the contrary, the only testimony regarding ownership was that Corona Realty Holdings, L.L.C. was the owner of the land. Roslyn Country Club, Inc., may be the operator of the Club, but according to the affidavits of service neither Coronal Realty Holdings, L.L.C. nor Roslyn Country Club was served. Absent such proof, it has not been established that the owner, a necessary party, was made a party or that the owner has been afforded due process (CPLR 1001[a]).

For the foregoing reasons, the application to hold Defendants in contempt, for damages and for enforcement of a permanent injunction is denied.

SO ORDERED,

Dated: January 12, 2007

Mineola, New YorkJ.S.C.