SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
December 31, 2008
DEENA K. DIETRICH, PLAINTIFF-RESPONDENT,
TAKAKO MICHII, DEFENDANT-APPELLANT.
Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), entered July 14, 2008. The order, upon finding defendant in contempt of court, imposed a fine and a term of intermittent incarceration.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, AND FAHEY, JJ.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
In this action for breach of contract, defendant appeals from an order finding her in contempt of court for failing to comply with the terms of a prior order and imposing sanctions that included, inter alia, a term of intermittent incarceration. Contrary to defendant's contention, plaintiff established by clear and convincing evidence that defendant, a judgment debtor, refused to obey the prior order (see Gray v Giarrizzo, 47 AD3d 765), and that her conduct did "defeat, impair, impede, [and] prejudice the rights [and] remedies of" plaintiff (Judiciary Law § 770). Consequently, Supreme Court providently exercised its discretion in imposing a term of intermittent incarceration upon finding defendant in civil contempt (see § 753 [A] ; cf. Gray, 47 AD3d at 766; see generally McCain v Dinkins, 84 NY2d 216, 225-226). Indeed, the record supports the court's determination that defendant failed to present credible evidence that she was financially unable to comply with the prior order (see Matter of Powers v Powers, 86 NY2d 63, 69-70; Matter of Commissioner of Social Servs. v Rosen, 289 AD2d 487, 488; cf. Joachim v Joachim, 57 AD2d 546, appeal dismissed 42 NY2d 1011, cert denied 434 US 1066).
© 1992-2009 VersusLaw Inc.