In this commercial nonpayment proceeding, petitioner moves to hold respondent in contempt of a stipulation signed by the parties, and so-ordered by a Judge of this court, on October 11, 2006.

Petitioner is the landlord of the building at 2115 Eighth Avenue in Manhattan. Respondent signed a lease for commercial space at the premises, intending to run an internet café in the space. The parties apparently had a falling out concerning the sort of food that may be served at an internet café and the nature of the cooking equipment that respondent could install in the space. Petitioner has taken the position that respondent installed equipment necessary for a full service restaurant in violation of the parties' understanding and without seeking proper governmental approvals. Petitioner contends that it understood that the internet café would only offer snacks. Respondent contends that an internet café would not be economically viable without offering a full array of hot food. At some point petitioner apparently refused to sign off on respondent's renovation plans and respondent withheld rent. This nonpayment proceeding ensued.

On October 11, 2006, the parties agreed to a stipulation of settlement which was "so ordered" by a Judge of this court ("October 11 stipulation"). This so ordered stipulation is the order upon which the instant contempt motion rests.

The October 11 stipulation provided, inter alia, for the payment of accrued rent according to a specified schedule. A final judgment was to be issued, and execution of same was stayed for respondent to pay rent. Respondent further agreed to

to permanently remove from the premises the grill, deep fryers, exhaust hood and exhaust flue/chimney (which runs thru the premises, out the window + up the back of the building.) Tenant shall be responsible for restoring and repairing any holes or other damage to the building facade after removal of the chimney. The grill and the deep fryers shall be removed within 20 days and the exhaust hood within sixty days of today. [*2]

Respondent also agreed in the October 11 stipulation "not to use the grill, deep fryers, exhaust hood or chimney flue while they remain in the premises and before they are permanently removed."

The October 11 stipulation also provided that:

Tenant shall submit to landlord new plans in accordance with the lease terms which omit the deep fryers and grill and which may include a gas hot water heater and gas connection for a coffee maker. These plans shall be in conformance with all applicable laws and codes and, if so, landlord will sign off on them so long as tenant is in compliance with this agreement.

The October 11 stipulation states the following concerning enforcement of its terms:

If tenant defaults under the provisions of ¶s 2 and 3 and 4 above (or any one of said paragraphs) landlord may, in addition to any other remedies it may have, enforce this agreement as an order of the Court.

Petitioner brought on this contempt motion by order to show cause alleging that respondent had failed to remove the exhaust hood and exhaust flue/chimney. At the return date, on February 28, 2007, petitioner also asserted that respondent, after removing the grill and fryer, had re-installed them into the restaurant.

The parties entered into settlement discussions and agreed to adjourn petitioner's motion to March 20, 2007. The parties entered into another "so ordered" stipulation. Respondent agreed to remove the grill and fryer and to pay rent. Petitioner agreed to use its "best efforts" to resolve its issues with respondent's building plans in order to attempt to sign off on the plans by the adjourned return date.

Respondent's attorney moved to be relieved as counsel by order to show cause, which motion was returnable on the adjourned date of petitioner's contempt motion: March 20, 2007. The court granted the motion and stayed the matter until April 16 for respondent to obtain new counsel.

The parties appeared before the court on April 16, 2007. Respondent appeared pro se. Further negotiations did not bear fruit. The court conducted a hearing on petitioner's contempt motion. The witnesses at this hearing, including respondent, agreed that respondent had not removed the hood or the flue. Additionally, one witness for petitioner, Casandra Dabbs, said that she had observed the grill and the deep fryer at the restaurant as late as March 14, 2007.

The elements of civil contempt are set forth in McCormick v. Axelrod, 59 NY2d 574, 583:

In order to find that contempt has occurred in a given case, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. It must appear, with reasonable certainty, that the order has been disobeyed. (Citations omitted.) Moreover, the party to be held in contempt must have had knowledge of the court's order... . Finally, prejudice to the right of a party to the litigation must be demonstrated.

The same act may be punishable as both a civil and criminal contempt. The element which serves to elevate a contempt [*3]from civil to criminal is the level of willfulness with which the conduct is carried out. (Id.) Each element of criminal contempt must be proven by a reasonable doubt. (See Gouiran Holdings, Inc. v McCormick, 163 AD2d 44, appeal dismissed 76 NY2d 851.)

Petitioner's motion fails because it is not based on a "lawful" order of the court.

The October 11 stipulation contains a variety of actions to be carried out by the parties. While the parties could certainly agree to perform these tasks, the Civil Court, with it's limited equitable power, had no jurisdiction to order the parties to carry them out. (Civil Court Act §§ 203[o], 209[b].) "Except for proceedings for the enforcement of housing standards and applications for certain provisional remedies, the New York City Civil Court may not grant injunctive relief." (Broome Realty Associates v Sek Wing Eng, 182 Misc 2d 917, 918 [cites omitted] [App Term, First Dep't 1999]; see North Waterside Redevelopment Co. v Febbraro, 256 AD2d 261 [First Dep't 1998], lv dismissed 93 NY2d 888; Arroyo v Rosenbluth, 115 Misc 2d 655.)

As the Civil Court is without jurisdiction to order the injunctive relief directed in the October 11 stipulation, respondent's failure to adhere to the stipulation is not punishable by contempt. (Shulz v State, 86 NY2d 225, 232, cert denied, 516 US 944.) The parties may not by stipulation expand the court's power to impose punishments for civil or criminal contempt. (Dep't of Housing Preservation and Development of the City of New York v Deka Realty Corp., 208 AD2d 37.)

Petitioner has other remedies available to it, such as seeking money damages in Civil Court or injunctive relief in Supreme Court. (See World Realty Corp. v Consumer Sales, Inc., 9 Misc 3d 136[A].) However, as the court had no power to order respondent to remove the exhaust and flue, this portion of the stipulation is not enforceable by a contempt motion.

For the foregoing reasons, petitioner's motion for contempt is denied. This constitutes the decision and order of the court.

Dated: May 7, 2007______________________________

J.C.C.