Astrada v. Archer, 34401/05
Decided: February 14, 2007
Justice Arthur M. Schack
"The instant action resulted from a real estate contract that never closed. I granted summary judgment to plaintiff and made the following order on December 21, 2006, in relevant part:
that within 10 days after notice of entry of this order is served by plaintiff upon defendants, defendant Regina Felton shall refund to plaintiff Faith Astrada, by payment to her present counsel, James T. Gerardi, Esq., plaintiff’s $30,000.00 down payment, together with accrued interest from April 19, 2005 to October 28, 2005, and statutory interest, at the CPLR §5004 rate of 9 per cent, from October 28, 2005 to the date of refund.
Further, I ordered a hearing on February 9, 2007, pursuant to 22 NYCRR §130-1.1, to determine if defendant Felton had engaged in "frivolous conduct," and to give defendant Felton "a reasonable opportunity to be heard," before possibly awarding costs and/or sanctions. Astrada v. Archer, 14 Misc3d 1206 (A), 2006 NY Slip Op 52432 (U).
Prior to the hearing, Mr. Gerardi notified Ms. Felton and this Court by mail, on February 1, 2007, that he had served Ms. Felton by first class mail and certified mail on January 3, 2007 with my Decision and Order. The certified mail return receipt shows that Ms. Felton’s office received the Decision and Order on January 7, 2007. Ms. Felton filed a Notice of Appeal on January 22, 2007. Thus, there can be no doubt that Ms. Felton was served with my December 21, 2006 Decision and Order.
At the February 9, 2007 hearing, both Ms. Felton and Mr. Gerardi were present.
Ms. Felton admitted that she had not returned the $30,000.00 down payment together with accrued and statutory interest. Defendant Felton unequivocally stated that she had the $30,000.00 down payment in her escrow account. She presented no testimony or evidence that a stay of enforcement, pursuant to CPLR §5519, pending her appeal had been granted.
I reserved decision on whether or not Ms. Felton engaged in "frivolous conduct" and if so, what costs and sanctions shall be awarded. However, with respect to Ms. Felton’s failure to comply with my Decision and Order to return the $30,000.00 down payment, together with accrued and statutory interest from April 19, 2005, it appears that Ms. Felton is engaging in conduct that may result in a finding that Ms. Felton is guilty of civil contempt.
Accordingly, it is
ORDERED that defendant Regina Felton, Esq. may be found guilty of civil contempt, in violation of Judiciary Law §763 (A), if 14 days after notice of entry of this order is served by plaintiff upon defendant Regina Felton, Esq., defendant Regina Felton, Esq., has not refunded to plaintiff Faith Astrada, by payment to her counsel, James T. Gerardi, Esq., plaintiff’s $30,000.00 down payment, together with accrued interest from April 19, 2005 to October 28, 2005, and statutory interest, at the CPLR §5004 rate of nine per cent, from October 28, 2005 to the date of refund.
This constitutes the Decision and Order of the Court. ¦