Upon the following papers numbered 1 to 30 read upon this application for an order of contempt: Notice of Motion and supporting papers, 1 - 12; Answering Affidavits and supporting papers, 13 - 26; Replying Affidavits and supporting papers, 27 - 30; it is

ORDERED that this application by plaintiff, Wendy Yusin, for an order pursuant to CPLR 5251 and Judiciary Law Article 19 punishing defendants, Saddle Lakes Home Owners Association, Inc., and Board of Managers of the Saddle Lakes Home Owners Association, for contempt of court for failure to comply with the terms of a stipulation dated April 19, 2013 that was "so ordered" by this Court on July 15, 2013 is granted; and it is further

ORDERED that each of the defendants are hereby directed to pay a fine of $250.00 for a total fine of $500.00, together with costs and expenses incurred by plaintiff provided, however, that said defendants are hereby granted leave to purge themselves of the contempt within ten (10) days after delivery to their attorneys, Cohen & Warren, P.C., of a copy of this order with notice of entry by appearing and satisfying the Court that they are unable to pay the fine(s) or by paying the fine(s) imposed herein.

Plaintiff is a condominium unit owner within the Saddle Lakes Community in Riverhead, New York. It is undisputed that plaintiff and her mother purchased the unit in November 2001. Following the death of plaintiff's mother in October 2011, defendants sought to enforce their claim that applicable regulations require occupancy of the condominium unit by at least one person over the age of 55 years. Plaintiff is under the age of 55.

During the course of these proceedings, the parties entered into a stipulation that was ratified by the Court pursuant to which the defendants agreed, inter alia, that during the pendency of this action they would "not disturb in any manner the possession rights of the Plaintiff in the subject premises . . ." The parties also agreed that the defendants "may continue to assert fines for any alleged violation of the Defendants [sic] Governing Documents but may not send or communicate notices or demands with respect to said alleged violations nor attempt to collect said assessments or fines if any." Plaintiff now moves for an order punishing the defendants in contempt of court for their alleged violation of the terms of the stipulation. Defendants have opposed the application.

In support of the application, plaintiff submitted a statement dated April 22, 2013 for the total amount of $703.90 which sets forth charges in the amount of $18.90 for "late charge", $50.00 for "violation", $35.42 for "common charge" and $284.58 for "HOA fee". It is indicated on such statement that the "Payment Due Date" was May 1, 2013 and that the plaintiff, as the statement recipient, should "make check payable and mail to" Saddle Lakes Condominium III at the address [*2]of its managing agent. Plaintiff also received a statement dated July 22, 2013 for a balance due of $820.00 to be paid by August 1, 2013, which statement includes a charge of $50.00 for "violation". Two other statements dated August 21, 2013 and September 24, 2013 set forth charges for violations, with each statement listing two violations, each in the amount of $50.00. Plaintiff also claims that she had complained to the President of the defendant Board of Managers "about an intruder" who had allegedly rung her doorbell after midnight, and that he responded that "it was a neighbor harassing you due to the lawsuit you have."

In addition to the foregoing, plaintiff submitted a notice dated September 23, 2013 which was sent by the defendants to each of the unit owners giving notice that each homeowner would be assessed $250.00 for the litigation expenses connected with a lawsuit instituted by one homeowner under the age of 55 years who resides alone in the condominium complex. It is alleged by plaintiff that the notice is inflammatory and was published with intent to harass plaintiff because, rather than simply notify unit owners that a special assessment was being imposed for litigation expenses, it asserts: "Our attempts to negotiate a mutually acceptable solution to this suit has met with a response that is non-negotiable, demanding complete permission for this resident to remain regardless of age."

Defendants submitted the affidavit by Douglas Weigler, an employee of their managing agent, who averred that monthly statements are prepared and sent to unit owners, and the fines for alleged violations which were set forth on the statements sent to plaintiff were issued "based upon directions given to me by the Board of Directors and our attorney." It is Weigler's assertion that the fines were included in the statements "to apprise the plaintiff that fines have been levied and their amount" and because their billing system "does not allow any other way for us to impose and keep track of the fines." While defendants also acknowledge having sent the notice to homeowners about the special assessment for litigation expenses, they have not addressed plaintiff's claim that they sanctioned or permitted other homeowners to engage in activities allegedly directed at disturbing plaintiff's peaceful occupancy of her home.

In order for the plaintiff to prevail on her motion to hold the defendants in civil contempt, she must demonstrate by clear and convincing evidence: (1) that a lawful order of the Court, clearly expressing an unequivocal mandate, was in effect; (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms; and (3) that the movant was prejudiced by the offending conduct (El-Dehdan v El-Dehdan, ___ AD3d ___, 978 NYS2d 239 [2d Dept 2013], citing Bernard-Cadet v Gobin, 94 AD3d 1030, 943 NYS2d 164 [2d Dept 2012]). Plaintiff has sustained her burden. The account statements sent by defendants constituted notices of allege violations as well as attempts to collect fines in violation of the terms of the stipulation and order. Furthermore, the notice of a special assessment for litigation expenses that was sent to all homeowners by defendants can only be viewed as adversarial, and its circulation prejudiced the plaintiff by instigating harassment by neighbors and disturbing plaintiff's right to peaceful occupancy and possession of her condominium unit. As defendants have acknowledged sending the statements and notice, no factual issue has been raised which would require a hearing, since the aforementioned written communications constitute clear violations of the "so-ordered" stipulation which prejudiced [*3]plaintiff.

Dated:

HON. WILLIAM B. REBOLINI, J.S.C.

FINAL DISPOSITIONXNON-FINAL DISPOSITION