Dietrich v. Michii

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 [2008]), 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 [1994]). 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 [1995]; Matter of Commissioner of Social Servs. v Rosen, 289 AD2d 487, 488 [2001]; cf. Joachim v Joachim, 57 AD2d 546 [1977], appeal dismissed 42 NY2d 1011 [1977], cert denied 434 US 1066 [1978]). Present—Scudder, EJ., Smith, Centra and Fahey, JJ.