On April 18, 2007, the defendant moved by order to show cause to set aside, vacate, or modify the court's oral directives made on November 3, 2006; to grant plaintiff re-argument of prior motion; to grant defendant leave to renew based upon new facts and law; to purge charges of willful non-compliance with the court's order dated May 3, 2006; to find plaintiff's settlement order defective because it fails to give defendant time to purge itself and to find the contempt fine excessive and unreasonable; to dismiss plaintiff's motion for contempt; to award attorney's fees; for sanctions upon the law office of Goldman and Greenbaum, P.C. for a bad faith motion for contempt; and to stay any oral directives of contempt made on November 3, 2006 and subsequent proposed orders of settlement. Plaintiff opposes the defendant's order to show cause.

On May 3, 2006, this court signed a judgment ordering the following:

That plaintiff Gihon, LLC was entitled to a declaratory judgment declaring that the written lease between the parties, dated October 18, 2001 for certain portions of 501 Second Street, is valid and enforceable.

That plaintiff fully performed its obligations under the Lease, except as prevented by defendant, and accordingly, plaintiff did not breach the lease.

That, in contrast, defendant breached the lease by 1) failing to deliver possession of the premises, 2) by failing to deliver working keys to all portions of the premises, 3) by failing to remove personal belongings of defedant's principal, Dororthy Nash, and 4) by failing to take any steps to secure a renewal of the liquor license, despite the delivery by plaintiff of a check in the sum of $5000.00 to defendant for such renewal.

That plaintiff is entitled to specific performance of the lease, and defendant is directed to specifically perform the lease.

That defendant was directed to provide working keys to all portions of the premises, other than those specifically reserved to defendant's principal. [*2]

That defendant is directed to remove all personal belongings of defendant's principal, Dorothy Nash, from the premises forthwith.

That defendant shall provide access to the premises to plaintiff, its agents, employees, contractors, and prospective subtenants, and shall not impede their presence at the premises.

That the term of the lease, including the six-month rent moratorium prescribed by the lease, will commence only upon delivery of possession of the premises to plaintiff.

That the defendant is directed to pay all insurance premiums for the premises until possession of the premises is delivered by defendant to plaintiff.

That all financial obligations imposed upon plaintiff under the terms of the leaseshall not be commenced until possession of the premises is delivered by defendantto plaintiff.

That defendant shall be responsible for payment of all real property taxes, water and sewer charges, and interest and penalties for non-payment of same, until possession of the premises is delivered by defendant to plaintiff.

That the purported transfer of the premises by defendant to 501 Second Street Holding Corp. is declared to be a nullity.

That the plaintiff shall recover costs and disbursements of this action, as taxed by the Clerk of the County of Kings, in the sum of $1400.00 (fourteen hundred dollars).

That each counterclaim interposed by the defendant in its amended answer is dismissed with prejudice.

On September 20, 2006, plaintiff brought an order to show cause seeking an order holding the defendant in contempt for refusing to comply with the above May 3, 2006 judgment. Specifically, the plaintiff sought an order of contempt alleging defendant failed to deliver possession of the leased premises and as a result should be fined $1000.00 per day from May 3, 2006 until defendant delivered possession of the premises; awarding plaintiff costs in the amount of its attorneys' fees for defendants' alleged frivolous and contemptuous misconduct; and imposing sanctions against defendant, its current counsel, or its former counsel.

On November 3, 2006, the court heard argument on plaintiff's order to show cause for contempt and granted the plaintiff's order for contempt, instructing plaintiff to settle an order on notice.

The defendant brought the instant order to show cause to vacate the November 3, 2006 oral directive of the court; to reargue the underlying plaintiff's order to show cause for contempt, and for other relief relating to alleged contemptuous behavior.

The court heard argument on the order to show cause on May 24, 2007 and June 19, 2007, granted re-argument, and reserved decision.

Motion Papers

Defendant's order to show cause contains Rachel Nash's affirmation and five exhibits. Exhibit one is plaintiff's original order to show cause for contempt dated September 20, 2006. Exhibit two is defendant's opposition to plaintiff's order to show cause for contempt. Exhibit three is a supplemental exhibit of transcripts from the court proceedings on November 3, 2006. Exhibit four are correspondence between parties and prior court orders pertaining to the case. Exhibit five is defendant's proposed counter order and judgment dated November 8, 2006. [*3]

Plaintiff's opposition consists of Martin Goldman's affirmation and eight exhibits. Exhibit one is a judgment signed by the court on May 3, 2006. Exhibit two is the court's memorandum after trial dated February 15, 2006. Exhibit three is Martin Goldman's reply affirmation for the underlying contempt motion dated November 2, 2006. Exhibit four is a copy of the Justice Knipel's order dated June 14, 2002. Exhibit five is Justice Knipel's decision dated March 13, 2003. Exhibit six is this court's decision dated May 8, 2007. Exhibit seven is Martin Goldman's affirmation in opposition to defendant's proposed counter order and judgment dated November 10, 2006. Exhibit eight is Joseph Link's affirmation dated May 4, 2007.

Law and Application

CPLR §2221(d) states:

A motion for leave to reargue shall be identified specifically as such;

and shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion

Judiciary Law § 753, states, in pertinent part:

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.

Judiciary Law §773, states in pertinent part:

If an actual loss or injury has been caused to a party to an action or special proceeding, by reason of the misconduct proved against the offender, and the case is not one where it is specially prescribed by law, that an action may be maintained to recover damages for the loss or injury, a fine, sufficient to indemnify the aggrieved party, must be imposed upon the offender, and collected, and paid over to the aggrieved party, under the direction of the court. The payment and acceptance of such a fine constitute a bar to an action by the aggrieved party, to recover damages for the loss or injury. Where it is not shown that such an actual loss or injury has been caused, a fine may be imposed, not exceeding the amount of the complainant's costs and expenses, and two hundred and fifty dollars in addition thereto, and must be collected and paid, in like manner.

Judiciary Law §774, states in pertinent part:

Where the misconduct proved consists of an omission to perform an act or duty, which is yet in the power of the offender to perform, he shall be imprisoned only until he has performed it, and paid the fine imposed...

Civil contempt has as its aim the vindication of a private right of a party to litigation, and anypenalty imposed upon the contemnor is designed to compensate the injured private party for [*4]the loss of or interference with that right (State of New York v Unique Ideas, 44 NY2d 345 [1978]). To find contempt, it must be established that the rights of a party have been prejudiced, and that even if there was a violation of a court order, it must be demonstrated that the violation compromised the rights of the complaining party {see McCain v Dinkins, 84 NY2d 216 [1994]; Trojano v Ilaria 205 AD2d 752 [2nd Dept. 1994]).

Although the court may not overlook a contempt in so far as it involves a substantial right of the aggrieved party, it may before inflicting punishment, give the offender an opportunity to purge the contempt (see Cooper v Cooper, 21 AD3d 869 [2nd Dept. 2005]). A common example of purging occurs where the offense consists in a failure to perform an act or duty which is still within the accused's power to perform. In such a case, the court may and, if the offense is technical and not willful, should give him an opportunity to perform the same (Kaminski v Kaminski, 212 AD2d 1045 [4th Dept. 1995]; Judiciary Law §774 [1]).

To sustain a civil contempt, a lawful judicial order expressing an unequivocal mandate must have been in effect and disobeyed (see McCain v Dinkins, supra.; Pereira v Periera, 35 NY2d 301). Moreover, the party to be held in contempt must have the knowledge of the order, although it is not necessary that the order actually have been served upon the party (McCain v Dinkins, supra; People ex rel. Stearns v Marr, 181 NY 463).

Where a party asking for a contempt finding proves monetary damages as a result of the contemptuous conduct, that party may recover those damages. However, where the party fails to prove the amount of damage suffered, the court may award that party only costs and attorney's fees, plus $250.00 "in addition thereto" (Judiciary Law §773; State of New York v Unique Ideas, 44 NY2d 345, 349 [1978]; Rechberger v Rechberger, 139 AD2d 906 [4th Dept. 1988]).

It is well settled that a motion to reargue is addressed to the discretion of the court and may be granted upon a showing that the court overlooked or misapprehended the facts or misapplied the relevant law or for some other reason improperly decided the prior motion (Hoey-Kennedy, 294 AD2d 573 [2nd Dept 2002]; CPLR §2221[d]). The court finds that it misapprehended the law when it imposed a $1000.00 fine against defendant for violating a court order.

In review of the plaintiff's original order to show cause for contempt, as well as in plaintiff's opposition to this order to show cause, it is apparent that plaintiff failed to prove actual damages that would justify a sanction or award of $1000.00 (one thousand dollars per day). The court vacates its prior oral directives on November 6, 2006, imposes a sanction of $250.00 (two hundred and fifty dollars) against defendant, and orders the parties to appear for a hearing on the issue of attorney's fees and costs. The hearing will be scheduled for February 5, 2008.

The decision as to whether to award sanctions is within the sound discretion of the court Plaintiff's motion must be found frivolous to award sanctions. Conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false. If a court awards costs or sanctions, it must be done in a written decision setting forth the offending conduct, why that conduct has been deemed frivolous and why the amount awarded is appropriate (see Greenstar Enterprises Inc. v DiSalvo, 9 Misc [*5]3d 1112 (A), [Kings County Supreme, 2005]). The court finds that the plaintiff's order to show cause was not completely without merit in that defendant violated the court's order by not turning over keys to the premises. Defendant's request for sanctions against plaintiff pursuant to 22 NYC RR 130-1.1 is denied.

The foregoing constitutes the decision and order of the court.

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J.S.C.