In this protracted and turbulent action, defendant moves for a finding of civil contempt and sanctions under Uniform Rule 130-1.1. Plaintiff, the owner and landlord of the premises on which the defendant's restaurant is located, initiated this action for a declaration that the option to purchase the restaurant for the sum of $2 million dollars was unenforceable against it. Defendant cross-moved first for specific performance and at a subsequent time a trial for monetary damages was held. Both applications were eventually granted after approximately four years of litigation before this Court and the Appellate Division.

During those four years, the history of this litigation has been amply described by this court and the Appellate Division. A brief summary of the major events in that history follows.

On October 6, 2004, this Court granted specific performance ordering the plaintiff to enter into a contract of sale of the premises. The plaintiff appealed and on June 16, 2005, the Appellate Division unanimously affirmed the decision.

The plaintiff refused to sign a contract of sale, arguing that the defendant was not ready, willing and able to buy the property and that neither this Court nor the Appellate Division had actually granted the defendant specific performance. On September 15, 2005, the Court made a finding of contempt against the plaintiff. The plaintiff finally signed a contract of sale on September 28 and the contempt proceeding was abandoned. On January 27, 2006, plaintiff sought a stay of the closing on the sale, arguing that defendant was not ready, willing and able to close, and also arguing that specific performance on the closing had not been ordered. Sensing that plaintiff's aim in delaying the closing was calculated to cause defendant to lose its financing for the purchase, the Court ordered the closing for March 15, 2006. On March 5, 2006, plaintiff continued to delay by filing a motion for clarification, offering again the discredited notion that defendant was not ready, willing and able to close and specific performance as to the closing was not granted. The motion was denied by this Court and on June 7, 2006, the Appellate Division affirmed. From August 21 through August 24, a bench trial on damages was conducted by this Court. Once again, the discredited contentions that specific

performance had not been ordered and defendant was not ready, willing and able to close, whereupon the Court ordered the closing for November 20, 2006. Meanwhile, the plaintiff brought a non-payment proceeding in Housing Court. The Court determined that as equitable owner the defendant did not have to pay [*2]rent and stayed the plaintiff from pursuing the landlord and tenant proceeding. On October 24, 2006, another motion for a stay was brought by plaintiff on the ground that only the building, but not the land was conveyed. The closing was delayed from November 20, 2006 to November 30, 2006 as a result of the delay caused by this motion. On November 22, 2006 after trial, the Court issued its findings of facts and conclusions of law which included a decision on the amount of damages defendant had incurred as a result of plaintiff's dilatory tactics and frivolous arguments.

The plaintiff filed an appeal accompanied by an automatic stay under CPLR 5519. The Court vacated the stay if the bond was not produced by December 7, 2006 and ordered the closing for that date. The plaintiff appealed again and sought to vacate the stay reiterating that defendant was not ready, willing and able to close and did not appear on December 7, 2006 on the ground that its appeal was pending. The Appellate Division denied both the stay and the appeal. On December 20, 2006 with the latest closing date scheduled for that day, plaintiff once again failed to appear having obtained the $1.5 million bond, claiming that this triggered the automatic stay. The Court vacated the stay because the bond was obtained substantially after

the date determined by the Court and the plaintiff had failed to appear on the Court-ordered closing date. The plaintiff appealed and obtained an interim stay. That stay was eventually vacated.

Thereafter, the defendant moved for the appointment of a receiver. On December 22, 2006, the motion was granted and subsequently a receiver was appointed, who obtained the closing and sale of the premises. The receiver's expenses and fee was paid for by defendant.

Defendant moves for damages resulting from the delay in the closing occasioned by the plaintiff's contumacious delay and avoidance of the Court's orders. Defendant also moves for monetary sanctions under Uniform Rule 130-1.1. Avron Van was substituted as plaintiff's attorney and has represented the plaintiff from June 2006 to the present. The plaintiff claims that defendant is responsible for the bulk of the delays, having repeatedly asked for stays of the closing dates until its summary judgment motion for damages had been decided. Plaintiff also argues that the Court is without jurisdiction to award sanctions under the Uniform Rules because a final judgment has been entered and such ancillary proceedings cannot be subsequently brought.

The motion for civil contempt is granted against plaintiff and Ahmed Qasemi, currently the sole owner of the plaintiff. The history of this proceeding reveals that it was plaintiff's consistent delay and avoidance of court orders, that [*3]required defendant in several instances to adjourn the closing. But it is noted that the bulk of the delays was the result of the tactics employed by plaintiff. The Court recalls that on April 23, 2002, the defendant restaurant exercised its option to purchase with an intended closing date of October 1, 2002. The closing did not take place until earlier this year, a delay of over four years. The actions of the plaintiff delayed, impaired impeded and prejudiced the rights of the defendant, a required finding under §753 (A) of the Judiciary Law on a finding of contempt. (See, Clinton Corner HDFC v Lavergne, 279 AD2d 339, 719 NYS2d 77 [1st Dept 2001]).

The purpose of civil contempt is to coerce obedience to a court order or to compensate for damages incurred by the injured party resulting from the disobedience of a court order (Department of Housing Preservation and Development v Deka Realty, 208 AD2d 37, 620 NYS2d 837 [2d Dept 1995]). Actual costs and expenses, including attorney's fees are a legitimate category of recovery for a contempt citation (Dorio v Peekskill Common Counsel, 13 AD3d 523, 787 NYS2d 721 [2d Dept 2004]; Alpert v Alpert, 261 AD2d 247, 701 NYS2d 765 [1st Dept 1999]).

Mr. Qasemi acquired sole interest in the property in June of 2006. Prior to that, he had a 50% interest in the property during the bench trial when the same old

tired and discredited arguments of lack of clarity, and that no specific performance had been ordered by the Court and the defendant was not ready, willing and able to close. He was in sole control even when the spurious non-payment proceeding was brought. Later on, he brought another motion for a stay on the frivolous ground that the building but not the land was conveyed, thereby causing an additional ten-day delay of the closing. After the award of damages in the bench trial, he brought a motion to fix the undertaking on the automatic stay on appeal. He did not show up on December 7, 2006 for the closing scheduled at that time. Neither did he appear on December 20, having tardily filed the $1.5 million bond required by the Court for the automatic stay. The Court vacated the automatic stay because plaintiff had failed to show up on December 7 for the closing scheduled for that date if the bond was not obtained by then and also that the filing of the bond had exceeded the time allotted for the filing of the bond.

Into 2006, while in total control of the plaintiff, Qasemi continued from June onward making unsuccessful motions for a stay of the closing, again arguing that defendant was not ready, willing and able to close and specific performance was not granted. When he lost, he moved for clarification of the order. In August, he raised outworn and discredited arguments at the trial. In October Qasemi moved for a stay on the rejected ground that the building and not the land [*4]was conveyed. He then failed to appear at closings scheduled on several occasions so that finally a receiver

had to be appointed to effectuate the closing.

These delaying tactics delayed, impeded, impaired and prejudiced the defendant's efforts to acquire title to the premises a required finding (See, Clinton Corner HDFC v LaVergne, 279 AD2d 339, 719 NYS2d 77 [1st Dept 2001]). It also prejudiced the defendant by causing it additional expenses for the trial and appeals and contributed to its inability to collect the rents and exercise control of he premises while this litigation ensued. Accordingly, the Court finds the plaintiff and Qasemi in contempt. To coerce the contemnors to perform any acts to comply with the Court's orders would be improper as the objective of selling the building pursuant to the option to purchase has been accomplished. Defendant is, however, entitled to its actual damages resulting from the acts constituting the damages including attorney's fees (Pace Advertising Agency v Manhattan Pacific Management, 237 AD2d 131, 654 NYS2d 140 [1st Dept 1997]; Alpert v Alpert, supra ). Defendant has already been awarded lost income from the rentals plus other expenses flowing from additional interest on loans obtained as a result of the excessive delay as damages after the trial. The Court will not award damages including attorney's fees for the dismissed eviction proceeding commenced in Civil Court as that recovery should have been obtained in the Civil Court proceeding. The Court will, however, award plaintiff its actual expenses, including attorney's fees for bringing and arguing this contempt motion after September 28, 2005, the date that

the previous contempt motion for refusing to execute a contract of sale was resolved. The Court also awards defendant its costs and expenses, including attorney's fees resulting from the various motions, appeals and the trial on damages.

Sanctions under Uniform Rule 130-1.1 are not awarded, as they would only tend to duplicate the contempt award.

During the course of the trial, I stated that I would not issue a contempt citation against Avram Vann, the attorney for the defendant in the later stages of these proceedings because his participation in the trial was for a short period of time. Since then, his participation in bringing on motions for stays and appeals exceeded my expectations. But the Order to Show Cause does not name Mr. Vann as a person against whom contempt or sanctions is sought. Consequently, there is no basis to award either contempt or sanctions against attorney Vann, although I would not award contempt against him anyway.

I have examined the plaintiff's remaining arguments and find them to be [*5]without merit.

Accordingly, it is

ORDERED that Mr. Ahmed Qasemi and 1319 Third Avenue Realty Corp. are in Civil Contempt of Court; and it is further

ORDERED that the question of damages is referred to the Special Referees' Clerk who is directed to assign this matter to a special Referee to hear and decide the question of damages against Qasemi and 1319 Realty Corp. in accordance with this decision, using the Lodestar method.

Dated: September 17, 2007

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Louis B. York, J.S.C.