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Decided on April 2, 2010
Supreme Court, Nassau County

202375/08
Robert B. Pollack, P.C., Attorney for Plaintiff, 350 Jericho Turnpike, Suite 105, Jericho, NY 11753 Kevin E. Rockitter, P.C., 180 Froehlich Farm Blvd., Woodbury, NY 11797 Robert A. Bruno, J.
Plaintiff moved, by Order to Show Cause ("OSC"), to hold the defendant in contempt, for violating several court orders dated October 14, 2008, November 21, 2008 and May 20, 2009, claiming, inter alia, that the defendant has willfully failed to pay the plaintiff's household expenses, certain support obligations and counsel fees as previously ordered for the benefit of plaintiff and the parties minor child.
For reasons not explained to this Court, this matter was adjourned four (4) times from July 31, 2009 though February 18, 2010, this Court conferenced this matter for the first time on February 18, 2010, at which time this Court advised counsel for the defendant he had until March 4, 2010 to submit opposition papers to plaintiff's OSC and a hearing was scheduled for March 23, 2010.
On March 23, 2010 a hearing was conducted. Counsel for defendant did not submit opposition papers. Both the plaintiff and the defendant testified. No other witnesses were called. According to the testimony adduced at trial and plaintiff's OSC, plaintiff has previously brought a motion for contempt seeking to hold the defendant in contempt of court for failing to comply with Justice Driscoll's orders dated October 14, 2008 and November 21, 2008. [*2]
On May 20, 2009 the parties settled the first motion for contempt by entering into a stipulation of even date which was "so ordered" by Justice Ross. This order provided:
"IT IS HEREBY STIPULATED AND AGREED by and between the below-names attorney(s) as follows: plaintiff's motion for contempt is resolved as follows: defendant shall bring the mortgages on the marital residence current by 6/15/09. Defendant shall pay as and for counsel fees on the motion, the sum of $5,000, with $2,500 to be paid by 5/16 and the remaining $2,500 to be paid by 6/15/09. Plaintiff reserves her right to move for a pendente lite counsel fee award. Defendant represents that except as set forth herein, all [bills] are required to be paid pendente lite are current."
Plaintiff testified that the defendant has not complied with Justice Ross's Order dated May 20, 2009 ("Order") nor has the defendant complied with the two (2) previous orders dated October 14, 2008 and November 21, 2008 and as a result, foreclosure proceedings regarding the marital home where plaintiff resides have been commenced. Similarly, plaintiff testified her health insurance was cancelled and she has received notice from at least one utility company that service was going to be disconnected. Plaintiff also testified that as a result of the defendant's failure to comply with the Court's three (3) prior orders, there is a tax lien against the marital residence.
Defendant testified that he owns and operates a pizzeria for approximately twenty-six (26) years and averages approximately $1,900 on a bad day and $6,200 on a good day. Defendant also testified that he was aware of the prior orders and that he did not pay the mortgage as provided in the orders and that his pizza business was off by about 30% and he owed others money. The defendant testified on direct examination that he moved in with his mother in 2005 and does not take a salary. However on cross-examination the defendant admitted that he takes cash from his business to pay for his living expenses, such as car, gas, insurance, cloths, food and his daughter's college tuition.
The defendant's testimony is further belied by his net worth statement sworn to on January 15, 2009 indicating he derives no income from his pizzeria (see Exhibit G to OSC), however the defendant lists as his expenses approximately $116,852 annually and his 2007 federal tax return lists defendant's annual income of $59,852.
A Contempt citation is a drastic remedy which should not be granted absent a clear right to such relief. Pinto v. Pinto, 120 AD2d 337, 501 NYS2d 835 (1st Dept. 1986); Usina Costa Pinto SA
v. Sanco Sav Company Limited, 174 AD2d 487, 571 NYS2d 264 (1st Dept. 1991). A court of record has the power to punish a party for civil contempt, upon a satisfactory showing by the movant that the party against whom the citation is sought had knowledge of a clear and unequivocal court order, which he/she violated, thereby prejudicing the rights of another party to the litigation. See, Judiciary Law

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