Thompson v. Victor Scocozza Studio Associates, Inc.

Orders of the Supreme Court, New York County (Taylor, J.) entered on February 23, and July 27, 1981, which, respectively, inter alia, denied defendants’ motion to dismiss the complaint, granted plaintiff’s application for a preliminary injunction, directed plaintiff to file an undertaking and which denied defendants’ subsequent motion to be relieved from the provisions of the first entered order, are affirmed, with one bill of costs. Order and judgment (one paper) of said court entered on June 4, 1981 which, inter alia, granted plaintiff’s motion finding defendants to be in contempt for failing to comply with the court’s order entered on February 23, 1981, imposed a fine of $250 for each of nine violations and awarded attorney’s fees, is modified, on the law and on the facts, to the extent of vacating the fine imposed and award of counsel fees, and determination of these issues is referred to the trial court, and otherwise affirmed, without costs. This is an action where plaintiff seeks an injunction and money damages amounting to more than two and one-half million dollars. It is alleged that the defendants failed to provide certain services and make repairs to plaintiff’s apartment, thereby denying him full use of this premise. As a result, plaintiff allegedly suffered damages. Special Term granted a preliminary injunction and directed the defendants to provide all regular apartment services to plaintiff. The defendants failed to comply with this order, resulting in a finding of contempt. As a consequence the court imposed monetary sanctions and awarded counsel fees. At this juncture where plaintiff has not yet established his damages, the imposition of these fines may be interpreted as an estimation of the amount of damages plaintiff sustained after issuance of the preliminary injunction. Presumably, the damages suffered before the court granted the injunction are similar to those encountered after this preliminary determination. Therefore, any determination as to this issue is premature and amounts to a punishment rather than indemnification (Judiciary Law, § 773). This practice has been proscribed, and the imposition of a fine in a matter of this nature should be remedial, which, on the facts before us, it was not (State of New York v Unique Ideas, 44 NY2d 345). In addition, section 773 of the Judiciary Law does not permit recovery of attorney’s fees where plaintiff has suffered an actual loss. Plaintiff’s alleged actual loss is the basis of plaintiff’s main action, and the question of counsel fees should be decided at trial. Concur — Sandler, J. P., Ross and Carro, JJ.