Coan v. Coan , 447 N.Y.S.2d 29 ( 1982 )

In an action to quiet title to real property, defendant Maureen A. Coan appeals from so much of an order of the Supreme Court, Orange County (Isseks, J.), dated July 9,1981, as found her guilty of contempt of court and ordered her to pay $250, with leave to purge herself if she complied with the terms of a stipulation dated November 2,1978. Order affirmed insofar as appealed from, without costs or disbursements. The court proceedings and other events disclosed by the record on this appeal establish the following: On November 2, 1978 a stipulation in this action was entered into before Justice Sweeny in the absence of Sigmund S. Weitzman, Esq., attorney for the defendants Turner. The stipulation, which was placed on the record by Gilbert Rashbaum, Esq., then the attorney for the defendant-appellant, together with an order of Justice Sweeny dated May 21, 1979, are the subjects of the within appeal. After the attorney for the appellant completed the presentation of the stipulation, and all attorneys, except the absent counsel Weitzman, stipulated and consented to the terms of the stipulation, the appellant, on the record, confirmed her understanding of, and agreement with, the stipulation. Mr. Weitzman, by letter dated November 17, 1978, addressed to Justice Sweeny, informed the court that the terms of the stipulation included in the court record of November 2, 1978 modified the essence of the agreement between counsel present on November 1, 1978 and that the stipulation was “unfair, unreasonable and overreaching”. Rashbaum received a copy of said letter. By letter dated November 22,1978, addressed to Weitzman, Rashbaum indicated his surprise at the content of Weitzman’s letter and concluded: “I may only repeat at this time that your letter made no sense as, first of all, it was not consistent with the facts; secondly, the agreement was not only fair and reasonable but was of benefit to your clients, and I must advise you that I resent the content and tone of your letter.” On January 4, 1979, a letter to Sigmund S. Weitzman, Esq., from the law secretary to Justice Sweeny, emphasized that vacating the stipulation required a motion to set aside the stipulation. By order dated May 21, 1979, Justice Sweeny granted plaintiffs’ motion for an order directing all parties to abide by the terms of the stipulation entered into in open court on November 2, 1978, and further directed the parties to do all acts required to carry out the terms of said stipulation. This motion was opposed by appellant. The appeal by defendant Maureen A. Coan from the order dated May 21,1979, was dismissed by this court based upon her failure to perfect the appeal. By order dated October 28,1980, Justice Cerrato denied a motion by defendant Maureen A. Coan, by substitute counsel, to vacate and set aside the stipulation dated November 2, 1978. Said order concluded that the May 21, 1979 order of Justice Sweeny was “the law of the case” since there was no motion to reargue and the appeal therefrom was not timely perfected. There was no appeal from the order of October 28, 1980. On July 9, 1981, Justice Isseks adjudged Maureen A. Coan and the Turners in contempt based upon their failure to comply with the provisions of the order dated May 21,1979 and imposed a fine of $250 upon each individually named defendant guilty of contempt, with leave to purge by compliance with the terms of the November 2, 1978 stipulation within a specified time. The order further provided that in the event any of the said named defendants failed to purge, the court would entertain an application pursuant to CPLR 5107 to allow the Sheriff of Orange County to convey real property in accordance with its directions and to appoint a surveyor in accordance with the stipulation of November 2, 1978. On this appeal, appellant argues that (1) without the consent of Mr. Weitzman, the entire stipulation is inoperative, and (2) the order dated May 21, 1979 is ambiguous, and an imprecise order cannot be the basis of a subsequent contempt adjudication. To adjudge a party in contempt, the mandate alleged to have been violated should be clearly expressed and it should appear with reasonable certainty that the act complained of constitutes a violation (Cleary v Kenny Scow Corp., 57 AD2d 313). In order to determine whether the record supports the adjudication of appellant’s contempt, a review of the order dated May 21,1979 and of the stipulation is necessary. The failure to perfect the appeal filed by appellant from the May 21 order does not preclude our review of that order to determine whether it clearly expresses a mandate subject to contempt for its willful violation. This is so since neither the clarity of the mandate nor the contemptuous nature of the act complained of can be determined without such review. The substantive provisions of the stipulation are not in issue on this appeal. It was the appellant, through her former counsel, Rashbaum, who proffered the stipulation in open court, and she affirmed her understanding of and consent to the stipulation. The May 21, 1979 order, in clear, plain and unconditional language, made the stipulation binding upon all parties and ordered each of the parties to comply with the stipulation. Such order whether or not it modified the stipulation as to a future consent, is res judicata as to the appellant (see Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 485; cf. O’Connor v G & R Packing Co., 74 AD2d 37, affd 53 NY2d 278). The stipulation did not require any further consent by the appellant; appellant’s agreement to the stipulation was not conditioned upon the consent of Weitzman and the defendants represented by Weitzman have not appealed from the contempt order. Finally, we agree that the order under review properly determined that the appellant failed to comply with the order dated May 21, 1979. Titone, Lazer and Bracken, JJ., concur.