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Weichert v. New York State Division of Human Rights

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


May 7, 2010

IN THE MATTER OF ROBERT M. WEICHERT, PETITIONER-APPELLANT, ET AL., PETITIONER,
v.
NEW YORK STATE DIVISION OF HUMAN RIGHTS, RESPONDENT, AND KRISTY MONTANARO, RESPONDENT-RESPONDENT.

Appeal from an order of the Supreme Court, Onondaga County (Donald A. Greenwood, J.), entered August 5, 2009. The order granted the motion of respondent Kristy Montanaro and held petitioner Robert M. Weichert in civil contempt.

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., MARTOCHE, LINDLEY, GREEN, AND GORSKI, JJ.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the motion is denied.

Memorandum

Supreme Court erred in holding Robert M. Weichert (petitioner) in civil contempt for failing to pay attorney's fees to Kristy Montanaro (respondent), as directed in a prior money judgment. That judgment was enforceable by execution pursuant to CPLR article 52, and thus holding petitioner in contempt was not an appropriate remedy. "Judiciary Law § 753 (A) (3) generally forbids the use of the court's civil contempt powers to enforce such [a] judgment[] . . ., and none of the exceptions to the general rule are applicable here (see CPLR 5104)" (Wiebusch v Hayes, 263 AD2d 389, 390-391; see 4504 New Utrecht Ave. Corp. v Pita Parlor, 143 AD2d 171).

Finally, we note that, although petitioner contends that the underlying judgment awarding attorney's fees to respondent was improper, petitioner failed to perfect his appeal from that judgment. Thus, "issues concerning the propriety of th[e] underlying [judgment] are not properly before us" (Data-Track Account Servs. v Lee, 291 AD2d 827, 827, lv dismissed 98 NY2d 727, rearg denied 99 NY2d 532). "Having failed to appeal [from the underlying judgment], petitioner may not disregard [it] with impunity nor may he use the contempt citation to revive any right to appeal or otherwise challenge the underlying [judgment], which right terminated as a result of his failure to appeal therefrom" (People ex rel. Sassower v Cunningham, 112 AD2d 119, 120, appeal dismissed 66 NY2d 914).

20100507

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