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Dietrich v. Michii

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


December 31, 2008

DEENA K. DIETRICH, PLAINTIFF-RESPONDENT,
v.
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.

Memorandum:

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] [1]; 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).

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