Opposition Brief — Morfesis v. Department of Housing Preservation & Development of New York

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Tse 8 ts

JAN 2 1990

: #, SPANIOL, J

No. 89-1020 \7- Saal

IN THE - —

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

ANDONIS MORFESIS,

Petitioner,

DEPARTMENT OF HOUSING PRESERVATION

AND DEVELOPMENT OF THE CITY OF NEW

YORK,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION TO A

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF

NEW YORK, APPELLATE DIVISION, FIRST

DEPARTMENT

VICTOR A. KOVNER,

Corporation Counsel of

the City of New York,

Attorney for Respondent,

100 Church Street

New York, New York 10007

(212) 566-4338

LEONARD J. KOERNER,*

FAY LEOUSSIS,

JANESSA C. NISLEY

JERALD HOROWITZ,

of Counsel.

*Counsel of Record

January 25, 1990

COUNTER QUESTIONS PRESENTED

1. Whether notice of a criminal contempt

proceeding served by leaving a copy of and

mailing one to an address petitioner was

required by statute to register with a

governmental agency contravenes the Due

Process Clauses of the Fifth and Fourteenth

Amendments to the Constitution of the United

States?

2. Whether the jail sentences imposed from

seven separate criminal contempt proceedings

may be aggregated to provide petitioner

criminal due process protections that would

not otherwise be available?

TABLE OF CONTENTS

COUNTER QUESTIONS PRESENTED

TABLE OF AUTHORITIES..........

COUNTER-STATEMENT OF THE

a eee ee ee ee <7

REASONS FOR DENYING THE WRIT

(1)

PETITIONER WAS GIVEN

REASONABLE NOTICE OF

THE CHARGES OF CRIMINAL

CONTEMPT AND AN

OPPORTUNITY TO DEFEND

AS REQUIRED BY DUE

PROCESS. PETITIONER

RECEIVED ACTUAL NOTICE

OF THE CHARGES,

APPEARED BY ATTORNEY

AND PUT IN A DEFENSE. .......

Page

TABLE OF CONTENTS CONT'D

(2)

THE JAIL SENTENCES

IMPOSED FROM SEVEN

SEPARATE CRIMINAL

CONTEMPT PROCEEDINGS,

INVOLVING SEVEN

DIFFERENT BUILDINGS, MAY

NOT BE AGGREGATED TO

PROVIDE PETITIONER WITH

CRIMINAL DUE PROCESS

PROTECTIONS TO WHICH HE

IS NOT OTHERWISE

ENTITLED. IN ANY EVENT,

THE SENTENCES IMPOSED

ARE EXPRESSLY SUBJECT

TO REDUCTION UPON

PETITIONER'S APPEARANCE

RSP e ede ecesess

a eee eee

APPENDIX

Order of the Civil Court of

the City of New York, dated

August 25, 1986, in

Department of — Housing

Preservation and Development

of the City of New York vy.

Tony Morfesis, et al. _.............

iii

Page

TABLE OF CONTENTS CON'T'D

Order of the Civil Court of

the City of New York, dated

25, 1986, in

Department of Housing

Preservation and Development

of the City of New York vy.

Andonis Morfesis, &

Edgecombe Equities ........

Order of the Civil Court of

the City of New York, dated

25, 1986, in

Department of _ Housing

Preservation and Development

of the City of New York v.

Andonis Morfesis, and 182 E.

U22NG Bt. Bemiew sn ew eeees

Order of the Civil Court of

the City of New York, dated

25, 1986, in

Department of Housing

Preservation and Development

of the City of New York vy.

Antonio Morfesis __...........

Order of the Civil Court of

the City of New York, dated

14, 1986, in

Department of Housing

Preservation and Development

of the City of New York vy.

24 West 132 _Equities, Inc.,

and Andonis Morfesis —........ .

Page

Al3

A25

TABLE OF CONTENTS CONT'D

Order of the Civil Court of

the City of New York, dated

October 8, 1986, in

Department of Housing

Preservation and Development

Chance Equities, Inc.,

Andonis Morfesis and Maria_

te eee eakw ss 0 4.0.

Order of the Civil Court of

the City of New York, dated

November 24, 1986, in

Department __ of ____ Housing

Preservation and Development

of the City of New York vy.

232 West Associates, Andonis —

Morfesis, and Joseph Colon .......

Order of the New York Court

of Appeals, dated September

i 1989, dismissing

petitioner's appeals to that

Court as non-final. —.........

New York Judiciary Law,

Se ee re

| ee

New York City Administrative Code:

Section 27-2097 .............

Section 27-2099 _.................

Section 27-2100 —=_...... ..... eee.

Page

A31

A37

AA43

A45

A46

A48

A49

A52

A53

TABLE OF AUTHORITIES

Page

Cases:

Amsterdam v. Goldstick,

136 Misc. 2d 946, 521 N.Y.S.2d

203 (App. Term, Ist Dep't

Se 25

Blackmer v. United States,

eS Oe, ree 29

Bloom v. Illinois,

a ee 32

Codispoti v. Pennsylvania,

418 U.S. 506 (1974) yee ee ee eee 32,33

Cooke v. United States,

BBy O.8. GEE CABEB) noc cc ces. 8,15,

17,18,26

District of Columbia v. Clawans,

A a). ee 32

Frank v. United States,

395 U.S. 147, rehearing

denied, 369 U.S. 869 (1969) _ 31

Gompers v. Bucks Stove & Range Co.,

Se a eee 22,23

Grannis v. Ordean, 234 U.S.

385 (1914) a ae aot Sos 36% 19

Green v. United States,

soe U.S. IGS CIBOB) == cece. 27

Greene v. Lindsey,

ae Ae 6 eC.) ee 20

TABLE OF AUTHORITIES CON'T'D

Page

Cases:

In re Sasson Jeans, Inc.,

83 Bankr. 206 (S.D.N.Y.),

remanded, 86 Bankr. 336

(ee ee ee!

Hicks acting on behalf of

Feiock v. Feiock, 485 U.S.

624, 108 S.Ct. 1423 (1988) ...... 20

Juidice v. Vail,

430 U.S. 327 (1977) _—........ on 19

Ketcham v. Edwards, 153 N.Y.

534, 47 N.E. 918 (1897) Bs cs a 19

Levine v. United States,

362 U.S. 610, rehearing

denied, 363 U.S. 858 (1960) - 18

Morrissey v. Brewer,

ee eee eo oou...s..... 19

Mullane v. Central Hanover Bank

Sassower v. Sheriff of

Westchester County, 824 F.2d

184 (2d Cir. 1987) ............. 23

TABLE OF AUTHORITIES CONT'D

Page

Cases:

Sterling v. Environmental

Control Board of New York

City, 793 F.2d 52 (2d Cir.

1986), rehearing denied,

795 F.2d 8 (2d Cir.),

cert. denied sub. nom.

Environmental Control Board of

The City of New York vy. Sterling,

el. eee 26

Taylor v. Hayes,

416 U.S. 668 (2074) .........<.... 18,19,23

United States v. Martinez,

686 F.2d 334 (5th Cir.

EE 28

United States v. Tortora,

464 F.2d 1202 (2d Cr.),

cert. den. sub nom.

Santoro Vv. United States,

409 U.S. 1063 (1972) ............. 28

Young v. U.S. ex rel.

Vuitton et Fils, S.A.,

481 U.S. 787 (1987) Perr re 17,26,27

viii

TABLE OF AUTHORITIES CONT'D

Page

Statutes:

NY City Civil Court Act:

ere 5,10,24

New York Civil Practice

Law and Rules:

ae 5,24

re 10,24

et rr 10

Te ) > EY 24

Section 321l(e) .......... 6

New York Judiciary Law:

Section 750 et seq. Sites 4

Section 75h 3s neve: 4,22,23

Section 756 j— # ....... 23

New York City Administrative Code:

Section 27-2028 ........ 2

Section 27-2031 _........ 2 ,

Section 27-2097 —........ 4,A48

Section 27-2098 ~—.......... 4,A49

Section 27-2099 ......... 4,A52

Section 27-2100 _......... 4,A53

1989 N.Y. Laws, ch. 274 _.......... 24

1988 N.Y. Laws, ch. 125 _.......... 24

1987 N.Y. Laws, ch. 115 _.......... . 24

1986 N.Y. Laws, ch. 77 ___.......... 24

Federal Rules of Civil Procedure:

EE ES a ee 24

Federal Rules of Criminal Procedure:

TE, eck. gas ek awe 4 28

No. 89-1020

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

ANDONIS MORFESIS,

Petitioner,

DEPARTMENT OF HOUSING PRESERVATION

AND DEVELOPMENT OF THE CITY OF NEW

YORK,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION TO A

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF

NEW YORK, APPELLATE DIVISION, FIRST

DEPARTMENT

COUNTER-STATEMENT OF FACTS

The petitioner, Andonis Morfesis, is the

owner of residential multiple dwellings in

New York City. In the winter of 1985-1986

he failed to provide heat and hot water to

the tenanis in seven buildings as required

by the New York City Administrative Code,

which sets forth various standards,

including minimum temperatures that must be

provided ("NYC Admin. Code") §§27-2029,

27-2031. Based on violations recorded by its

inspectors, the Department of Housing

Preservation and Development of the City of

New York ("HPD") commenced seven separate

code enforcement proceedings in the New

York City Civil Court, New York County,

which resulted in orders directing petitioner

to comply with statutory standards for the

provision of heat and hot water and,

ultimately, in the seven separate contempt

orders that petitioner seeks to have this

Court review. Each of the contempt orders

imposed a_thirty-day jail sentence for

criminal contempt and expressly states that

the sentence may be reduced once. the

petitioner appears or is brovght before the

Court (Respondent's Appendix ["Resp.

eee ae Oe ae ee Ny

App."] at A4, Al0, Al6, A22, A28-29, A35,

A40-A41).

The contempt proceedings were based

on interim and final orders in the underlying

code enforcement proceedings’ directing

petitioner to provide heat and hot water as

required by statute. Those orders were

duly served on the petitioner at the address

that he was required by the _ statute to

days should there be a change of address

("registered address") See N.Y.C. Admin.

Code §§27-2097, 27-2098, 27-2099, 27-2100.

(Resp. App. at A48-A54)

When violations continued to be

recorded on later HPD inspections of tenants’

apartments in the seven buildings, | HPD

1when the statutory minimum for heat was an

indoor temperature of 68°F. and 120°F. for

hot water, indoor temperature readings as

(Footnote Continued)

commenced proceedings for civil and criminal

contempt under the New York Judiciary Law

("Jud. Law") by order to show cause. See

Jud. Law, §750 et seq. Each show cause

order gave notice of the time and place of

the hearing and of the criminal and civil

contempt charges, demanded petitioner's

attendance and, as required by the Judiciary

Law §751, warned of the possible imposition

of fines or imprisonment. The supporting

affirmation gave notice of the nature of the

disobedience and the essential facts

underlying it.

(Footnote Continued)

low as 44°F., 50°F., 46°F., 48°F., 40°F.

and 58°F. were recorded in each of six of

the seven buildings. No heat was required

in the seventh building at that time, because

the outdoor temperature was above 55°F.

Hot water temperatures as low as 38°F.,

36°F., 40°F., and 32°F. were recorded in

the buildings. Multiple violations were

placed on each building with one building

having as many as “(fifteen heat and

twenty-one hot water violations.

The show cause orders directed that

service be made in accordance with the New

York Civil Practice Law and Rules ("CPLR")

and the New York City Civil Court Act

("NYCCCA"). As permitted by CPLR §308

and NYCCCA §110(m), the orders to show

cause and affirmations were served by

delivering copies to a "person of suitable age

and discretion" at the address petitioner

registered with HPD, which was petitioner's

business office, and mailing a copy to

petitioner at that same address, which

petitioner stated in his HPD Registration was

also his residential address. CPLR §308(2)

does not require that a diligent effort be

made to serve a person in-hand before

utilizing this method of service. See CPLR

§308(2); NYCCCA §110(m) (Petitioner's

Appendix ["Pet. App."] 35-44).

Petitioner and the other respondents in

the contempt proceedings appeared’ by

See ea a ae —

attorney on the return date. Under CPLR

§3211(e), petitioner waived objections to

personal jurisdiction in six of these

proceedings based on his failure timely to

assert them by answer or motion. At the

commencement of the contempt hearing, the

trial court granted an _ application by

petitioner's attorney for separate contempt

orders in the five underlying enforcement

proceedings that had _ been _ previously

consolidated on HPD's motion. The other

two proceedings were heard separately.

Petitioner chose not to attend the

contempt hearings and did not testify on his

own behalf at any of the hearings. In six

of the proceedings, lack of personal

jurisdiction was not raised until] after HPD

had put in its case. In two decisions dated

August 6, 1986 and another dated August

11, 1986, the trial judge found petitioner in

civil and criminal contempt for his wilful

disobedience of its injunctive orders and set

a single sentencing hearing for’ these

proceedings for August 13, 1986 at 2:00

p.m. Each decision expressly stated that an

arrest warrant would be issued if the

petitioner was not personally present for

sentencing (See Pet. App. 10-18).

Petitioner did not appear at. the

sentencing hearing. Instead, three

attorneys appeared on his. behalf. After

hearing argument, the trial court adjourned

appearance before the court either

voluntarily or subject to an arrest warrant.

The court subsequently signed the seven

arrest orders in which he_- sentenced

petitioner to 30 days in jail in each, to run

consecutively, but specifically stated that

the sentences could be reduced upon

petitioner's appearance in Court (Resp. App.

at A4, Al10, Al6, <A22, <A28-A29, A35,

A40-A41).

On appeal to the New York Supreme

Court, Appellate Term, First Department,

based on this Court's decisions in Cooke v.

United States, 267 U.S. 517 (1925) and

Mullane v. Central Hanover Bank and Trust

Co., 339 U.S. 306 (1950), the Appellate

Term rejected petitioner's constitutional

argument and unanimously affirmed the Civil

Court. The Appellate Term found that

jurisdiction over petitioner's person was

obtained in conformity with the United States

Constitution and New York law. (Pet. App.

1-5). On appeal, by leave of the Appellate

Term, First Department, to the New York

Supreme Court, Appellate Division, First

Department, the Appellate Division affirmed

without opinion (Pet. App. 6-9, 30-32).

Petitioner then appealed as of right on

constitutional grounds to the Court of

Appeals. After the submission of letter

briefs by the parties, that appeal was

dismissed sua sponte by the Court of

Appeals upon the ground that the order

appealed from did not finally determine the

proceedings (Resp. App. A43-A44).

Petitioner then moved in the Appellate

Division for leave to appeal to the Court of

Appeals, which was denied (Pet App.

33-34).

Stays pending the appeals of the seven

arrest orders were granted by the Appellate

Term and have continued through the state

appellate process. On November 1, 1989,

the Appellate Division granted a_= stay

pending filing and disposition of a_ petition

for certiorari to this Court.

OPINIONS BELOW

(1)

The New York City Civil Court Opinions

In three opinions, two dated August 6,

1986 and a third dated August 11, 1986, the

Civil Court found the petitioner in civil and

criminal contempt based on his

non-compliance with its orders. The Civil

Court held that NYCCCA §110(m) is a valid

exercise of the State's power to ensure that

parties receive proper notice of proceedings,

that mailing to the address the petitioner

had filed with HPD was sufficient under

NYCCCA §110(m) and CPLR 308(2) and (4),

and that there had been valid personal

service on the petitioner. In so holding,

the Court observed that if petitioner had a

residence at a different address from that he

had registered with HPD, failure to serve at

that address was the petitioner's fault and

not that of HPD (Pet. App. 15-16, 21-22).

In the opinion dated August 6, 1986

relating to the five proceedings which had a

consolidated contempt hearing, the Civil

Court found that there was "no doubt

whatever" that the petitioner's acts in failing

to provide heat and hot water were willful

and in violation of the court's order (Pet.

App. 17). The court credited the tenants’

testimony, which was in substance that they

had very little heat throughout the heating

season, and that of HPD's inspector, who

had observed the boilers, all of which were

in "deplorable" condition and some of which

were not functioning. The Civil Court

concluded, "The extreme temperatures of the

buildings over an extended period of time

and the total absence of hot water can only

be construed as a disregard for the life and

health of the numerous tenants in the

buildings at issue here" (Pet. App. 13, 17).

Based on the "absolutely deplorable

conditions" in the record, the court

determined that a criminal contempt jail

sentence should be imposed (Pet. App. 18).

In its opinions, dated August 6, 1986

and August 11, 1986, the Civil Court found

that the petitioner had willfully violated the

court's order in the sixth and seventh

proceedings based on evidence of extremely

low heat and hot water temperatures. In

these cases, petitioner had conceded the lack

of adequate heat and hot water, which the

court construed as "blatant" disregard for

the tenants’ life and health, the Court found

that a criminal contempt sentence should be

imposed.

In each opinion, the Civil Court set a

sentencing hearing for August 13, 1986.

The court stated that at that time when the

petitioner was personally before the court it

would determine the length of the jail

sentences and that an arrest warrant would

be issued should he not appear in person.

Since petitioner did not personally

appear at the sentencing hearing, the court

issued seven arrest warrants in which he

sentenced petitioner to 30 days in jail in

each of the seven proceedings to run

consecutively, but expressly stated that the

sentences may be reduced upon petitioner's

appearance in court.

(2)

The New York State Supreme Court

Appellate Term Opinion =

The Appellate Term of the Supreme

Court unanimously affirmed the orders and

warrants of arrest of the Civil Court in an

opinion reported sub. nom. Department of

Housing Preservation and Development of the

City of New York, 24 West 132 Equities,

Inc., at 137 Mise.2d 459, 524 N.Y.S.2d 324

and in two opinions which relied on it.

After reviewing the record, the Appellate

Term was satisfied that HPD had established

petitioner's guilt of willful and deliberate

disobedience of the court's’ underlying

mandates beyond a reasonable doubt (Pet.

App. 2).

The Appeliate Term held that

jurisdiction over the petitioner's person had

been lawfully obtained where service was

effected under the "leave and mail" provision

of the CPLR. The Appellate Term rejected

petitioner's argument that personal delivery

of the contempt papers was_ required,

reasoning that a criminal contempt

proceeding is a_ civil special proceeding

under New York law and is governed by

civil rather than criminal procedure (Pet.

App. 3-4). In support of its conclusion that

personal service, as a jurisdictional predicate

for criminal contempt, does not require

personal delivery, the Appellate Term noted

that there is no appellate case expressly

holding that personal delivery is required or

that statutory alternatives are infirm.

The Appellate Term stated, "Personal

delivery of process, as a heightened form of

notice is of course always preferable, but

due process does not require it in special

proceedings such as this one so long as the

party charged is notified of the accusation

and is afforded a reasonable time to defend,"

citing Judiciary Law §751(1) and Cooke y.

United States, 267 U.S. 517, 537 (1925).

The court went on to observe (Pet-App. at

5):

In the’ particular context of

contempts not committed in the

immediate presence of the court, it

is frequently the case that those

who have flagrantly violated the

court's orders are not disposed to

make themselves readily available

for personal delivery of notice that

they are to be prosecuted for

contempt of those orders.

REASONS FOR DENYING THE WRIT

PETITIONER WAS GIVEN

REASONABLE NOTICE OF THE

CHARGES OF CRIMINAL

CONTEMPT AND AN

OPPORTUNITY TO DEFEND AS

REQUIRED BY DUE PROCESS.

PETITIONER RECEIVED ACTUAL

NOTICE OF THE CHARGES,

APPEARED BY ATTORNEY AND

PUT IN A DEFENSE.

In support of his application for

review, petitioner maintains that service

pursuant to state statutes permitting notice

of a criminal contempt proceeding to be left

at and mailed to an address that petitioner

was required to register by — statute

contravened his rights under the Due

Process Clauses of the Fifth and Fourteenth

Amendments of the United States Constitution

and that the decisions of the New York State

courts that service was not constitutionally

defective are not in accordance with recent

decisions of this Court. To the contrary,

the decision of the New York Supreme

Court, Appellate Term, affirmed by the

Appellate Division, is consistent with the

applicable determinations of this Court and

petitioner has demonstrated no special or

important reasons to justify further review

on writ of certiorari.

The procedural due process) standard

required by the Constitution for notice in a

non-summary criminal contempt proceeding

was articulated by this Court in 1925 in

Cooke v. United States, 267 U.S. 517, 537

(1925), and was recently reaffirmed. Young

v. U.S. ex rel. Vuitton et Fils, S.A., 481

U.S. 787, 798-99 (1987). It requires that

the "accused should be advised of the

charges and have a reasonable opportunity

to meet them by way of defense or

explanation," which includes the assistance

of counsel and the right to call witnesses.

Cooke, 267 U.S. at 537.

This Court has made _ clear that

procedural safeguards for criminal contempts

are based on the Due Process Clause and are

not derived from the explicit requirements of

the Sixth Amendment. Levine vy. United

States, 362 U.S. 610, 616, reh'g denied, 363

U.S. 858 (1960). The determination of what

is required may turn on the circumstances of

a particular case. Id. "The provision of

fundamental due process protections for

contemnors accords with our historic notions

of elementary fairness." Taylor vy. Hayes,

418 U.S. 488, 500 (1974).

This Court has consistently refrained

from prescribing the procedure required by

due process in criminal contempt

proceedings. In addressing the issue, this

Court stated, "the exact form of the

procedure in the prosecution of such

contempts is not important." Cooke, supra,

267 U.S. at (9536. In 8 more recent

discussion in Taylor v. Hayes, supra, 418

U.S. at 500, where an alleged contemnor

faced deprivation of liberty, the Court

described the due process requirement as

"some orderly process, however informal,"

citing Morrissey v. Brewer, 408 U.S. 471,

482 (1972).

Because the contempt power is basic to

the administration of a State's judicial

system, the State's interest in the contempt

process through which it vindicates’ the

operation of that system is of great

importance. Juidice v. Vail, 430 U.S. 327,

335 (1977) (citing Ketcham vy. Edwards, 153

N.Y. 534, 539, 47 N.E. 918, 920 (1897)).

Due process is_ satisfied if the notice

employed provides "the fundamental requisite

of due process of law [which] is the

opportunity to be heard.” Grannis vy.

Ordean, 234 U.S. 385, 394 (1914). This

Court has noted that it is not _ its

responsibility "to prescribe the form of

service” that a state should adopt. Greene

v. Lindsey, 456 U.S. 444, 445 n. 9 (1982).

It is for the State through its

legislature and the court system to determine

the procedure applicable to criminal contempt

proceedings, including notice of the

proceeding, as long as it affords’ the

contemnor adequate notice of the charge and

an opportunity to be heard. In Hicks on

behalf of Feiock v. Feiock, 485 US 624, 108

S. Ct. 1423 (1988), where this Court

addressed the question of classifying

contempts as_ civil or criminal for’ the

purpose of determining whether the due

process protections required for criminal

proceedings were applicable, this Court

appears to have approved of giving notice

by mail to the contemnor. This Court

described the notice in Hicks, labeled

“criminal in nature", as having been "sent to

respondent" and, in a footnote, the Court

appears to say that that procedure was

sufficient to satisfy due process. Id. at

1433; 1433 n.10.7

Accordingly, and

contrary to the petitioner's assertion (Pet.

at 10), this Court's opinion in Hicks, does

not support petitioner's conclusion that leave

and mail service where the mailing is made to

an address registered with HPD violates

constitutional due process’ standards for

notice.

Thus, in Hicks, this Court plainly did

not expand the constitutional notice

requirements applicable to criminal contempt

proceedings, as petitioner would have this

Court believe (Pet. at 8-10). The Hicks

zn criminal contempt proceedings brought in

the Federal Courts, personal delivery of

notice is not required. See In re Sasson

Jeans, Inc., 83 Bankr. 206, 217-18

(S.D.N.Y. 1988), remanded 86 Bankr. 336

(S.D.N.Y. 1988).

opinion states in a footnote, "one charged

with a crime is ‘not only entitled to be

informed of the nature of the charge against

him but to know that it is a charge and not

a suit'."” 108 S. Ct. at 1433, n. 10 (citing

Gompers v. Bucks Stove & Range Co., 221

U.S. 418, 446 (1911)). This Court was only

underscoring the Gompers Court's concern

that an alleged contemnor should not be left

in doubt as to whether the object of the

contempt proceeding is relief or punishment.

Gompers, supra, 221 U.S. at 446.

The criminal contempt proceedings now

before this Court were brought pursuant to

the New York Judiciary Law, which governs

applications to the courts for a finding of

contempt in the course of existing

proceedings. Section 751, which applies to

criminal contempt, provides in language

similar to the constitutional standard, where

a contempt is not committed in the presence

of the court, "the party charged must be

notified of the accusation and have a

reasonable time to make a defense." N.Y.

Jud. Law §751(1)(reprinted in Resp. App. at

A45). See Sassower_v. Sheriff of

Westchester County, 824 F.2d 184 (2d Cir.

1987). (upholding constitutionality of section

751 of the Judiciary Law on its face). As

required by Section 756 of the Judiciary

Law, each of these criminal contempt

proceedings was commenced by _ motion,

contained notice of the charges and a

warning in 8 pt. type that failure to appear

couid result in imprisonment. These

motions, which warned of the seriousness of

the charges and the consequences of not

appearing, satisfy the Gompers standard that

the party served know that the proceeding

is a charge which may result in punishment

and not a suit.

The motions were served pursuant to

the leave and mail provisions of CPLR §308

and NYCCCA §110(m) (see Pet. App.

35-44)°. The motions were not left at the

buildings, but delivered to the address that

petitioner himself was required to list with

HPD pursuant to section 27-2097 of the New

York City Administrative Code, the purpose

of which is to ensure that owners of

residential dwellings may be actually and

immediately contacted by HPD to _ resolve

building violations.

3The New York Legislature’ has _ since

expanded the means by which personal

jurisdiction may be acquired to _ include

leaving at and mailing to the actual place of

business by amending CPLR §308(2), 1988

N.Y. Laws ch. 125, 1987 N.Y. Laws ch.

115, 1986 N.Y. Laws ch. 77, and by adding

a new section CPLR §312-a modeled on Rule

4 of the Federal Rules of Civil Procedure

that provides for service by mail. 1989

N.Y. Laws ch. 274.

The legislative goal of the registration

requirement in the context of housing code

enforcement serves the legitimate’ state

interest of ensuring that an owner of

residential multiple dwellings is "subject to

the immediate jurisdiction of the regulatory

agencies and the courts.” Amsterdam y.

Goldstick, 136 Misc.2d 946, 947, 521

N.Y.S.2d 203, 204 (App. Term, Ist Dep't

1987). Service by mail at an address

registered with a regulatory agency is more

likely to provide actual notice than mailing to

the last known residence and is more likely

to further the State's interest of enforcing

housing maintenance regulations since, as

the Appellate Term recognized here, "it is

frequently the case that those who have

flagrantly violated the court's orders are not

disposed to make themselves available for

personal delivery of notice that they are to

be prosecuted for contempt of those orders"

(Pet. App. 5). See also, In re Sasson

Jeans, Inc., supra, 83 Bankr. at 217 n.6.

The efficacy of the type of notice given

here is demonstrated by these proceedings

where the petitioner had actual notice,

appeared by counsel and defended.

Thus, the notice required by the New

York State statutes to commence 3 criminal

contempt proceeding -- leaving the motion at

and mailing it to the address which the

building owner himself provides to a housing

regulatory agency, more than satisfies the

constitutional requirement of “advising” the

contemnor of the charges against him.

Young v. U.S. ex rel. Vuitton et Fils,

S.A., supra, 481 U.S. at 798-99; Cooke v.

Unites States, supra, 267 U.S. at 537; see

Sterling v. Environmental Control Board of

New York City, 793 F.2d 52, 57-58; 58 n. 4

Cir.), cert. denied sub nom. Environmental

Control Board of the City of New York v.

Sterling, 479 U.S. 987 (1986) (the Court

made clear that the statutory provision for

process that includes mailing a copy to a

registered address on file with the City

would satisfy the Due Process Clause).

There is no _ constitutional basis for

petitioner's argument (Pet. at 10-11) that a

state is required to apply its criminal

procedure laws to criminal contempt

proceedings for purposes of giving notice of

the proceeding so long as the notice affords

the requisite opportunity to defend. While

contempt proceedings are sufficiently criminal

in nature to require many _ procedural

safeguards, they are not intended to punish

conduct which is proscribed by the general

criminal laws but, instead, seek to preserve

respect for the court's authority. Young,

481 U.S. at 800. See Green vy. United

States, 356 U.S. 165, 186-87 (1958).

Consequently, the procedural requirements

set forth in United States vy. Tortora, 464

F.2d 1202, 1209 (2d Cir.), cert. den. sub

nom. Santoro v. United States, 409 U.S.

1063 (1972) are not applicable where a

person has not been indicted for a crime.

Significantly, where a criminal contempt

proceeding is brought under Rule 42(b) of

the Federal Rules of Criminal Procedure, no

formal indictment or other imperatives are

required so long as the contemnor has

adequate notice. United States v. Martinez,

686 F.2d 334, 345 (5th Cir. 1982). And,

the Federal Rules do not require personal

delivery. See In re Sasson Jeans, Inc.,

supra, 83 Bankr. at 217-18.

In Mullane_v. Central Hanover Trust

Co., 339 U.S. 306, 314 (1950), this Court

stated, the "right to be heard has little

reality or worth unless one is informed that

the matter is pending and can choose for

himself whether to appear or default,

acquiesce or contest." However, this Court

has also held that it is not a violation of due

process to hold a hearing in a_ criminal

contempt proceeding even’ though _ the

contemnor was not present and to subject

him to punishment where the contemnor had

“suitable notice and adequate opportunity to

appear." Blackmer _v. United States, 284

U.S. 421, 440 (1932).

In these proceedings, petitioner had

more than "suitable" notice of the criminal

contempt punecedings based on his

disobedience of court orders requiring him to

provide heat and hot water as required by

statute. The papers initiating the contempt

proceedings included warnings of the

seriousness of the charges and_ the

consequences of not appearing. Although

petitioner chose not to appear personally in

court to defend against these contempt

charges, he sent his attorneys to appear on

his behalf to explain his actions and present

witnesses. Petitioner received all the

process he was due under the Constitution.

(2)

THE JAIL SENTENCES IMPOSED

FROM SEVEN SEPARATE CRIMINAL

CONTEMPT PROCEEDINGS,

INVOLVING SEVEN DIFFERENT

BUILDINGS, MAY NOT BE

AGGREGATED TO PROVIDE

PETITIONER WITH CRIMINAL DUE

PROCESS PROTECTIONS TO

WHICH HE IS NOT OTHERWISE

ENTITLED. IN ANY EVENT, THE

SENTENCES IMPOSED ARE

EXPRESSLY SUBJECT TO

REDUCTION UPON PETITIONER'S

APPEARANCE IN COURT.

Petitioner has argued alternatively that,

even assuming personal delivery was not

required in every criminal contempt

proceeding, personal delivery was required

here because the vsne-month jail sentences

imposed on the seven’ separate charges

relating to seven different buildings

amounted to more than six months (Pet. at

12). That claim is without basis.

An alleged contemnor is entitled to a

jury trial for a serious contempt, but not for

a petty contempt. Frank v. United States,

395 U.S. 147, 148, rehearing denied, 396

U.S. 869 (1969). In making the

determination of whether a crime is serious,

federal courts look to the maximum

authorized punishment. See, District of

Columbia v. Clawans, 300 U.S. 617 (1937).

In New York, the Judiciary Law authorizes a

maximum sentence of imprisonment of thirty

days for criminal contempt. N.Y. Jud. Law,

§751(1). A jai) sentence of no more than six

months is considered petty for purposes of

the right to a trial by jury. Codispoti v.

Pennsylvania, 418 U.S. 506, 512 (1974). As

the maximum penalty for criminal contempt in

New York is thirty days, the criminal due

process protection of trial by jury and other

criminal due process. protections’ do not

attach. See Bloom yv. Illinois, 391 U.S. 194,

211 (1968).

Here there were seven separate

proceedings brought to compel the provision

of heat and hot water in seven separate

buildings, which resulted in seven separate

jail sentences. This fact distinguishes this

case from Codispoti, supra, 418 US 506,

where tnis Court held that multiple

contempts during the course of a_ single

trial, which resulted in an aggregate

sentence exceeding six months, triggers

criminal due process protections. Petitioner

may not aggregate the seven separate 30-day

sentences in seven entirely separate

proceedings to obtain due process

protections to which he otherwise would not

be entitled.

In any event, where multiple contempts

are committed during a single trial, this

Court has held that a cumulative sentence

greater than six months imposed after

conviction may be reduced by the State to

six months or less rather than retry the

contempt with a jury. Taylor v. Hayes, 418

U.S. 487, 496 (1974). Here, the arrest

orders appealed from in each of the

proceedings are non-final in that they direct

that the petitioner be brought before the

court at which time each term of

imprisonment may be reduced by the trial

court (Resp. App. at A4, Al0, Al6, A22,

A28-A29, A35, A40-41).

Since petitioner may not aggregate his

seven different jail sentences for seven

different charges’ pertaining to seven

different buildings for purposes of obtaining

due process protections applicable to serious

criminal proceedings, and, in any event, his

sentences may be reduced when he appears

in court, he has no basis upon which to

demand personal delivery of the criminal

contempt charges.

CONCLUSION

THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BF. DENIED.

January 25, 1990

Respectfully submitted,

VICTOR A. KOVNER,

Corporation Counsel

of the City of New York,

Attorney for Respondent,

100 Church Street

New York, N.Y. 10007

(212) 566-4338

LEONARD J. KOERNER,*

FAY LEOUSSIS,

JANESSA C. NISLEY,

JERALD HOROWITZ,

of Counsel.

*Counsel of Record

ORDER OF THE CIVIL COURT OF THE CITY

OF NEW YORK, Dated August 25, 1986

(Denominated a "Warrant")

CIVIL COURT OF THE CITY OF NEW YORK

COUNTY OF NEW YORK: HOUSING PART

18L

DEPARTMENT OF HOUSING PRESERVATION

AND DEVELOPMENT OF THE CITY OF NEW

YORK,

Petitioner,

-against-

TONY MORFESIS,

Respondents.

WARRANT OF ARREST

Index HP-1531/85

Premises:

369 West 126th St.

New York, N.Y.

PRESENT:

HON. LEWIS R. FRIEDMAN

3.8.C.

A motion having duly come on before me

on April 25, 1986, by an order to Show

Cause dated April 15, 1986 for an Order

finding respondent in contempt of court for

failure to comply with Orders’ entered

December 17, 1985 and January 16, 1986,

petitioner Department of Housing

Preservation and Development having

appeared by its attorney Bruce Kramer,

Esq., Lawrence P. Cartelli, of counsel, and

Israel & Krasner by Arthur J. Israel having

appeared in opposition thereto.

NOW, upon motion of petitioner, and

after filing and reading the aforementioned

Order to Show Cause with proof of service

thereof, the affirmation of Lawrence P.

Cartelli in support of the contempt motion,

and after conducting a hearing on_ the

issues.

IT IS HEREBY FOUND THAT:

1) TONY MORFESIS was. properly

served the December 17, 1985 and January

16, 1986 Orders and TONY MORFESIS was

properly served with the April 15, 1986

Order to Show Cause to Punish for

Contempt.

2) Upon the DHPD inspection reports

dated December 19, 1985, January 9, 1986,

January 15, 1986, January 25, 1986, January

27, 1986, January 31, 1986, February 11,

1986 and Apri) 18, 1986, the testimony of

Herman Coombs, other documentary evidence

presented, respondent TONY MORFESIS is

found to have failed to comply with the

December 17, 1985 and January 16, 1986

Orders, by failing to:

a) Provide 68° fahrenheit heat in

every portion of the premises used for living

when the outside temperature fell below 55°

during the hours of 6 a.m. and 10 p.m. on

each and every day required from December

17, 1985.

b) Supply every bath, shower,

washbasin and sink in every dwelling unit

with hot water at a constant minimum

temperature of 120° fahrenheit.

——EEEa

3) Such non-compliance constitutes

separate and distinct civil contempts of this

Court's December 17, 1985 and January 16,

1986 Orders, in that it was _ reasonably

calculated to and actually did defeat, impair,

impede and prejudice petitioner by thwarting

its efforts to have the subject premises

restored to minimum housing standards.

4) Such non-compliance was willful and

constitutes separate and distinct criminal

contempts of this Court's December 17, 1985

and January 16, 1986 Orders and warrants

the imposition of a criminal jail sentence.

TONY MORFESIS is to be imprisoned for a

period of thirty days in the jail of the

county where the court is sitting. Said

sentence may be reduced in the discretion of

the court and the court may consider such

reduction when TONY MORFESIJS is brought

before the court pursuant to provisions

contained herein. The sentence imposed in

1 lietee

this matter shall be served consecutively to

any other sentence imposed by this court

upon TONY MORFESIS tm any other matter.

IT IS HEREBY DIRECTED:

1) That for his criminal contempts of

the Court's order for his failure to provide

adequate heat and hot water at the subject

premises, the Sheriff of the County of New

York or the Sheriff of any County within the

State of New York or other enforcement

officer of any jurisdiction wherein’ the

offender may be found, to whom a certified

copy of this Order shall be delivered shall

forthwith and without further process take

the body of TONY MORFESIS and bring him

before this Court in Part L, 111 Centre St.,

New York, N.Y., Room 526 for such further

disposition as may be ordered by this Court.

If TONY MORFESIJS is arrested at a

time when the Court is not in session, he is

to be lodged with the Department of

ee eee

Corrections and the Department of

Corrections shall produce him at 9:30 a.m.

when the Court shall next be in session.

SO ORDERED:

HON. LEWIS R. FRIEDMAN, |

J.H.C.

ENTERED:

CLERK OF THE COURT

ORDER OF THE CIVIL COURT OF THE CITY

OF NEW YORK, Dated August 25, 1986

(Denominated a "Warrant")

CIVIL COURT OF THE CITY OF NEW YORK

COUNTY OF NEW YORK: HOUSING PART

18L

DEPARTMENT OF HOUSING PRESERVATION

AND DEVELOPMENT OF THE CITY OF NEW

YORK,

Petitioner,

-against-

ANDONIS MORFESIS,

EDGECOMBE EQUITIES

WARRANT OF ARREST

Index HP-1625/85

Premises:

323, Edgecombe Ave.

New York, N.Y.

PRESENT:

HON. LEWIS R. FRIEDMAN

J.H.C.

A motion having duly come on before me

on April 25, 1986, by an order to Show

Cause dated April 15, 1986 for an Order

finding respondent in contempt of court for

failure to comply with Orders’ entered

January 9, 1986 and January 17, 1986,

petitioner Department of Housing

Preservation and Development having

appeared by its attorney Bruce Kramer,

Esq., Lawrence P. Cartelli, of | counsel, and

Israel & Krasner by Arthur J. Israel having

appeared in opposition thereto.

NOW, upon motion of petitioner, and

after filing and reading the aforementioned

Order to Show Cause with proof of service

thereof, the affirmation of Lawrence P.

Cartelli in support of the contempt motion,

and after conducting a hearing on _ the

issues.

IT IS HEREBY FOUND THAT:

1) ANDONIS MORFESIS was properly

served the January 9, 1986 and January 17,

1986 Orders and ANDONIS MORFESIS' was

properly served with the April 15, 1986

Order to Show Cause to Punish for

Contempt.

2) Upon the DHPD inspection reports

dated January 25, 1986, and March 21, 1986

the testimony of Inspector Deejen other

documentary evidence presented, respondent

ANDONIS MORFESIS is found to have failed

to comply with the January 17, 1986 Orders,

by failing to:

a) Provide 68° fahrenheit heat in

every portion of the premises used for living

when the outside temperature fell below 55°

during the hours of 6 a.m. and 10 p.m. on

each and every day required from January

9, 1986.

b) Supply every bath, shower,

washbasin and sink in every dwelling unit

with hot water at a constant minimum

temperature of 120° fahrenheit.

3) Such non-compliance constitutes

separate and distinct civil contempts of this

Court's January 9, 1986 and January 17,

1986 Orders, in that it was_ reasonably

aia aia

calculated to and actually did defeat, impair,

impede and prejudice petitioner by thwarting

| its efforts to have the subject premises

restored to minimum housing standards.

4) Such non-compliance was willful and

constitutes separate and _ distinct criminal

contempts of this Court's January 9, 1986

and January 17, 1986 Orders and warrants

the imposition of a criminal jail sentence.

ANDONIS MORFESIS is to be imprisoned for

a period of thirty days in the jail of the

county where the court is sitting. Said

sentence may be reduced in the discretion of

the court and the court may consider such

reduction when ANDONIS MORFESIS is

brought before the court pursuant to

provisions contained herein. The sentence

imposed in this matter shall be served

consecutively to any other sentence imposed

by this court upon ANDONIS MORFESIS in

any other matter.

Al0

IT IS HEREBY DIRECTED:

1) That for his criminal contempts of

the Court's order for his failure to provide

adequate heat and hot water at the subject

premises, the Sheriff of the County of New

York or the Sheriff of any County within the

State of New York or other enforcement

officer of any jurisdiction wherein the

offender may be found, to whom a certified

copy of this Order shall be delivered shall

forthwith and without further process take

the body of ANDONIS MORFESIS and bring

him before this Court in Part L, 111 Centre

St., New York, N.Y., Room 526 for such

further disposition as may be ordered by

this Court.

If ANDONIS MORFESIS is arrested at a

time when the Court is not in session, he is

to be lodged with the Department of

Corrections and the Departinent of

All

Corrections shall produce him at 9:30 a.m.

when the Court shall next be in session.

SO ORDERED:

HON. LEWIS R. FRIEDMAN,

J.H.C.

ENTERED:

CLERK OF THE COURT

Al2

ORDER OF THE CIVIL COURT OF THE CITY

OF NEW YORK, Dated August 25, 1986

(Denominated a “Warrant")

CIVIL COURT OF THE CITY OF NEW YORK

COUNTY OF NEW YORK: HOUSING PART

18L

DEPARTMENT OF HOUSING PRESERVATION

AND DEVELOPMENT OF THE CITY OF NEW

YORK,

Petitioner,

-against-

ANDONIS MORFESIS, and

182 E. 122nd ST. EQUITIES,

Respondents.

WARRANT OF ARREST

Index HP-519/86

Premises:

182 E. 122nd St.

New York, N.Y.

PRESENT:

HON. LEWIS R. FRIEDMAN

J.H.C.

A motion having duly come on before me

on April 25, 1986, by an order to Show

Cause dated April 15, 1986 for an Order

finding respondent in contempt of court for

failure to comply with Order entered March

Al3

6, 1986, petitioner Department of Housing

Preservation and Development having

appeared by its attorney Bruce Kramer,

Esq., Michael Stepper, of counsel, and

Allison, Kaufman & Greenberg, by L. Jeffrey

Roth, appearing in opposition thereto, Israel

& Krasner by Arthur J. Israel having

appeared in opposition thereto.

NOW, upon motion of petitioner, and

after filing and reading the aforementioned

Order to Show Cause with proof of service

thereof, the affirmation of Lawrence P.

Cartelli in support of the contempt motion,

and after conducting a hearing on_ the

issues.

IT IS HEREBY FOUND THAT:

1) ANDONIS MORFESIS was properly

served the March 6, 1986 Order and

ANDONIS MORFESIS was properly served

with the June 5, 1986 Order to Show Cause

to Punish for Contempt.

Al4

2) Upon the DHPD inspection reports

dated March 31, 1986, the testimony of

Evelyn Ortiz, Hilda Graziani, Margarita

Rivera and Inspection Weston, other

documentary evidence presented, respondent

ANDONIS MORFESIS is found to have failed

to comply with the March 6, 1986 Order, by

failing to:

a) Provide 68° fahrenheit heat in

every portion of the premises used for living

when the outside temperature fell below 55°

during the hours of 6 a.m. and 10 p.m. on

each and every day required from March 6,

1986.

b) Supply every bath, shower,

washbasin and sink in every dwelling unit

with hot water at a constant minimum

temperature of 120° fahrenheit.

3) Such non-compliance constitutes

separate and distinct civil contempts of this

Court's March 6, 1986 Order, in that it was

Al15

reasonably calculated to and actually did

defeat, impair, impede and_ prejudice

petitioner by thwarting its efforts to have

the subject premises restored to minimum

housing standards.

4) Such non-compliance was willful and

constitutes separate and distinct criminal

contempts of this Court's March 6, 1986

Order and warrants the imposition of a

criminal jail sentence. ANDONIS MORFESIS

is to be inprisoned for a period of thirty

days in the jail of the county where the

court is sitting. Said sentence may be

reduced in the discretion of the court and

the court may consider sich reduction when

ANDONIS MORFESIS is brought before the

court pursuant to provisions contained

herein. The sentence imposed in this matter

shall be served consecutively to any other

sentence imposed by this court upon

ANDONIS MORFESIS in any other matter.

Al6

IT IS HEREBY DIRECTED:

1) That for his criminal contempts of

the Court's order for his failure to provide

adequate heat and hot water at the subject

premises, the Sheriff of the County of New

York or the Sheriff of any County within the

State of New York or other enforcement

officer of any jurisdiction wherein’ the

offender may be found, to whom a certified

copy of this Order shall be delivered shall

forthwith and without further process take

the body of ANDONIS MORFESIS and bring

him before this Court in Part L, 111 Centre

St., New York, N.Y., Room 526 for such

further disposition as may be ordered by

this Court.

If ANDONIS MORFESIS is arrested at a

time when the Court is not in session, he is

to be lodged with the Department of

Corrections and the Department of

Al7

‘i

Corrections shall produce him at 9:30 a.m.

when the Court shall next be in session.

SO ORDERED:

HON. LEWIS R. FRIEDMAN,

J.H.C.

ENTERED:

CLERK OF THE COURT

———<xe

ORDER OF THE CIVIL COURT OF THE CITY

OF NEW YORK, Dated August 25, 1986

(Denominated a "Warrant")

CIVIL COURT OF THE CITY OF NEW YORK

COUNTY OF NEW YORK: HOUSING PART

18L

DEPARTMENT OF HOUSING PRESERVATION

AND DEVELOPMENT OF THE CITY OF NEW

YORK,

Petitioner,

-against-

ANTONIO MORFESIS

Respondent.

WARRANT OF ARREST

Index HP-1536/85

Premises:

541 West 133rd St.

New York, N.Y.

PRESENT:

HON. LEWIS R. FRIEDMAN

J.H.C.

A motion having duly come on before me

on April 25, 1986, by an order to Show

Cause dated April 15, 1986 for an Order

finding respondent in contempt of court for

failure to comply with Orders’ entered

Al9

December 17, 1985 and January 16, 1986,

petitioner Department of Housing

Preservation and Development having

appeared by its attorney Bruce Kramer,

Esq., Lawrence P. Cartelli, of counsel, and

Israel & Krasner by Arthur J. Israel having

appeared in opposition thereto.

NOW, upon motion of petitioner, and

after filing and reading the aforementioned

Order to Show Cause with proof of service

thereof, the affirmation of Lawrence P.

Cartelli in support of the contempt motion,

and after conducting a hearing on _ the

issues.

IT IS HEREBY FOUND THAT:

1) ANTONIO MORFESIS was properly

served the December 17, 1985 and January

16, 1986 Orders and ANTONIO MORFESIS

was properly served with the April 15, 1986

Order to Show Cause to Punish for

Contempt.

A20

“A

2) Upon the DHPD inspection reports

dated December 28, 1985, January 11, 1986,

January 27, 1986, January 30, 1986,

February 6, February 8, 1986, February 18,

1986, March 11, 1986, the testimony of

Herman Coombs, other documentary evidence

presented, respondent ANTONIO MORFESIS

is found to have failed to comply with the

December 17, 1985 and January 16, 1986

Orders, by failing to:

a) Provide 6€&© fahrenheit heat in

every portion of the premises used for living

when the outside temperature fell below 55°

during the hours of 6 a.m. and 10 p.m. on

each and every day required from December

17, 1985.

b) Supply every bath, shower,

washbasin and sink in every dwelling unit

with hot water at ai constant minimum

temperature of 120° fahrenheit.

A21

;

3) Such non-compliance constitutes

separate and distinct civil contempts of this

Court's December 17, 1985 and January 16,

1986 Orders, in that it was’ reasonably

calculated to and actually did defeat, impair,

impede and prejudice petitioner by thwarting

its efforts to have the subject premises

restored to minimum housing standards.

4) Such non-compliance was willful and

constitutes separate and distinct criminal

contempts of this Court's December 17, 1985

and January 16, 1986 Orders and warrants

the imposition of a criminal jail sentence.

ANTONIO MORFESIS is to be imprisoned for

a period of thirty days in the jail of the

county where the court is sitting. Said

sentence may be reduced in the discretion of

the court and the court may consider such

reduction when ANTONIO MORFESIS is

brought before the court pursuant to

provisions contained herein. The sentence

A22

“igh hee

imposed in this matter shall be served

consecutively to any other sentence imposed

by this court upon ANTONIO MORFESIS in

any other matter.

IT IS HEREBY DIRECTED:

1) That for his criminal contempts of

the Court's order for his failure to provide

adequate heat and hot water at the subject

premises, the Sheriff of the County of New

York or the Sheriff of any County within the

State of New York or other enforcement

officer of any jurisdiction wherein the

offender may be found, to whom a certified

copy of this Order shall be delivered shall

forthwith and without further process take

the body of ANTONIO MORFESIS and bring

him before this Court in Part L, 111 Centre

St., New York, N.Y., Room 526 for such

further disposition as may be ordered by

this Court.

A23

If ANTONIO MORFESIS is arrested at a

time when the Court is not in session, he is

to be lodged with the Department of

Corrections and the Department of

Corrections shall produce him at 9:30 a.m.

when the Court shall next be in session.

SO ORDERED:

HON. LEWIS R. FRIEDMAN,

J.H.C.

ENTERED:

CLERK OF THE COURT

A24

ORDER OF THE CIVIL COURT OF THE CITY

OF NEW YORK, Dated August 14, 1986

(Denominated a "Warrant")

CIVIL COURT OF THE CITY OF NEW YORK

COUNTY OF NEW YORK: HOUSING PART

18L

DEPARTMENT OF HOUSING PRESERVATION

AND DEVELOPMENT OF THE CITY OF NEW

YORK,

Petitioner,

-against-

24 WEST 132 EQUITIES, INC., and

ANDONIS MORFESIS,

Respondents.

WARRANT OF ARREST

Index HP-1534/85

Premises:

24 West 132nd St.

New York, N.Y.

PRESENT:

—

HON. LEW

S R. FRIEDMAN

eo}

A motion having duly come on before me

on April 25, 1986, by an order to Show

Cause dated April 15, 1986 for an Order

A25

finding respondent in contempt of court for

failure to comply with Orders’ entered

December 17, 1985 and January 16, 1986,

petitioner Department of Housing

Preservation and Development having

appeared by its attorney Bruce Kramer,

Esq., Lawrence P. Cartelli, of counsel, and

Israel & Krasner by Arthur J. Israel having

appeared in opposition thereto.

NOW, upon motion of petitioner, and

after filing and reading the aforementioned

Order to Show Cause with proof of service

thereof, the affirmation of Lawrence P.

Cartelli in support of the contempt motion,

and after conducting a hearing on _ the

issues.

IT IS HEREBY FOUND THAT:

1) ANDONIS MORFESIS was properly

served the December 17, 1985 and January

16, 1986 Orders and ANDONIS MORFESIS

was properly served with the April 15, 1986

A26

We ne Anh Se relia Aad ead

Order to Show Cause to Punish for

Contempt.

2) Upon the DHPD inspection reports

dated December 29, 1985, January 23, 1986,

January 29, 1986, February 13, February

26, 1986, March 6, 1986, March 12, 1986,

March 18, 1986, March 21, 1986, March 26,

1986, the testimony of Herman Coombs and

Verna Billings other documentary evidence

presented, respondent ANDONIS MORFESIS

is found to have failed to comply with the

December 17, 1985 and January 16, 1986

Orders, by failing to:

a) Provide 68° fahrenheit heat in

every portion of the premises used for living

when the outside temperature fell below 55°

during the hours of 6 a.m. and 10 p.m. on

each and every day required from December

17, 1985.

b) Supply every bath, shower,

washbasin and sink in every dwelling unit

A27

with hot water at a constant minimum

temperature of 120° fahrenheit.

3) Such non-compliance’ constitutes

separate and distinct civil contempts of this

Court's December 17, 1985 and January 16,

1986 Orders, in that it was reasonably j

calculated to and actually did defeat, impair,

impede and prejudice petitioner by thwarting

its efforts to have the subject premises

restored to minimum housing standards.

4) Such non-compliance was willful and

constitutes separate and distinct criminal

contempts of this Court's December 17, 1985

and January 16, 1986 Orders and warrants

the imposition of -a criminal jail sentence.

ANDONIS MORFESIS is to be imprisoned for

a period of thirty days in the jail of the

county where the court is sitting. Said

sentence may be reduced in the discretion of

the court and the court may consider such

reduction when ANDONIS MORFESIS is

A26

}

brought before the court pursuant to

provisions contained herein. The sentence

imposed in this matter shall be served

consecutively to any other sentence imposed

by this court upon ANDONIS MORFESIS in

any other matter.

IT IS HEREBY DIRECTED:

1) That for his criminal contempts of

the Court's order for his failure to provide

adequate heat and hot water at the subject

premises, the Sheriff of the County of New

York or the Sheriff of any County within the

State of New York or other enforcement

officer of any jurisdiction wherein’ the

offender may be found, to whom a certified

copy of this Order shall be delivered shall

forthwith and without further process take

the body of ANDONIS MORFESIS and bring

him before this Court in Part L, 111 Centre

St., New York, N.Y., Room 526 for such

A29

ee eee

further disposition as may be ordered by

this Court.

If ANDONIS MORFESIS is arrested at a

time when the Court is not in session, he is

to be lodged with the Department of

Corrections and the Department of

Corrections shall produce him at 9:30 a.m.

when the Court shall next be in session.

SO ORDERED:

HON. LEWIS R. FRIEDMAN,

J.H.C.

ENTERED:

CLERK OF THE COURT

A30

ORDER OF THE CIVIL COURT OF THE CITY

OF NEW YORK, Dated October 8, 1986

(Denominated a "Warrant")

CIVIL COURT OF THE CITY OF NEW YORK

COUNTY OF NEW YORK: HOUSING PART

18L

DEPARTMENT OF HOUSING PRESERVATION

AND DEVELOPMENT OF THE CITY OF NEW

YORK,

Petitioner,

-against-

CHANCE EQUITIES, INC.,

ANDONIS MORFESIS and MARIA MORFESIS,

Respondents.

WARRANT OF ARREST

Index HP-1535/85

Premises:

537 West 133rd St.

New York, N.Y.

PRESENT:

HON. LEWIS R. FRIEDMAN

J.H.C.

A motion having duly come on before me

on April 25, 1986, by an order to Show

Cause dated April 15, 1986 for an Order

finding respondent in contempt of court for

failure to comply with Orders’ entered

A31

December 17, 1985 and January 16, 1986,

petitioner Department of Housing

Preservation and Development having

appeared by its attorney Bruce Kramer,

Esq., Lawrence P. Cartelli, of counsel, and

Israel & Krasner by Arthur J. Israel having

appeared in opposition thereto.

NOW, upon motion of petitioner, and

after filing and reading the aforementioned

Order to Show Cause with proof of service

thereof, the affirmation of Lawrence P.

Cartelli in support of the contempt motion,

and after conducting a hearing on the

issues.

IT IS HEREBY FOUND THAT:

1) ANDONIS MORFESIS was properly

served the December 17, 1985 and January

16, 1986 Orders and ANDONIS MORFESIS

was properly served with the April 15, 1986

Order to Show Cause to Punish for

Contempt.

A32

~ ee ee a

2) Upon the DHPD inspection reports

dated January 3, 1986, Jauary 18, 1986,

January 24, 1986, February 6, 1986,

February 8, 1986, February 11, 1986,

February 18, 1986, February 28, 1986,

March 6, 1986, March 10, 1986, March 11,

1986, March 14, 1986, March 18, 1986, march

20, 1986, April 7, 1986, April 14, 1986,

April 17, 1986, April 24, 1986, April 19,

1986, and May 6, 1986, the testimony of

Herman Coombs, other documentary evidence

presented, respondent ANDONIS MORFESIS

is found to have failed to comply with the

December 17, 1985 and January 16, 1986

Orders, by failing to:

a) Provide 68° fahrenheit heat in

every portion of the premises used for living

when the outside temperature fell below 55°

during the hours of 6 a.m. and 10 p.m. on

each and every day required from December

17, 1985.

A33

b) Supply every bath, shower,

washbasin and sink in every dwelling unit

with hot water at a constant minimum

temperature of 120° fahrenheit.

3) Such non-compliance constitutes

separate and distinct civil contempts of this

Court's December 17, 1985 and January 16,

1986 Orders, in that it was reasonably

calculated to and actually did defeat, impair,

impede and prejudice petitioner by thwarting

its efforts to have the subject premises

restored to minimum housing standards.

4) Such non-compliance was willful and

constitutes separate and distinct criminal

contempts of this Court's December 17, 1985

and January 16, 1986 Orders and warrants

the imposition of a criminal jail sentence.

ANDONIS MORFESIS is to be imprisoned for

a period of thirty days in the jail of the

county where the court is sitting. Said

sentence may be reduced in the discretien of

A34

the court and the court may consider such

reduction when ANDONIS MORFESIS is

brought before the court pursuant. to

provisions contained herein. The sentence

imposed in this matter shall be _ served

consecutively to any other sentence imposed

by this court upon ANDONIS MORFESIS in

any other matter.

IT IS HEREBY DIRECTED:

1) That for his criminal contempts of

the Court's order for his failure to provide

adequate heat and hot water at the eubfect

premises, the Sheriff of the County of New

York or the Sheriff of any County within the

State of New York or other enforcement

officer of any jurisdiction wherein’ the

offender may be found, to whom a certified

copy of this Order shall be delivered shall

forthwith and without further process take

the body of ANDONIS MORFESIS and bring

him before this Court in Part L, 111 Centre

A35

St., New York, N.Y., Room 526 for such

further disposition as may be ordered by

this Court.

If ANDONIS MORFESIS is arrested at a

time when the Court is not in session, he is

to be lodged with the Department of

Corrections and the Department of

Corrections shall produce him at 9:30 a.m.

when the Court shall next be in session.

SO ORDERED:

HON. LEWIS R. FRIEDMAN,

J.H.C.

ENTERED:

CLERK OF THE COURT

A36

ORDER OF THE CIVIL COURT OF THE CITY

OF NEW YORK, Dated November 24, 1986

(Denominated a "Warrant")

CIVIL COURT OF THE CITY OF NEW YORK

COUNTY OF NEW YORK: HOUSING PART

18L

DEPARTMENT OF HOUSING PRESERVATION

AND DEVELOPMENT OF THE CITY OF NEW

YORK,

Petitioner,

-against-

232 WEST ASSOCIATES, ANDONIS

MORFESIS, JOSEPH COLON,

Respondents.

WARRANT OF ARREST

Index HP-1544/85

Premises:

236-38 W. 149th St.

New York, N.Y.

FPRESEN TS :

HON. LEWIS R. FRIEDMAN

J.H.C.

A motion having duly come on before me

on April 25, 1986, by an order to Show

Cause dated April 15, 1986 for an Order

finding respondent in contempt of court for

A37

failure to comply’ with Orders entered

December 17, 1985 and January 16, 1986,

petitioner Department of Housing

Preservation and Development having

appeared by its attorney Bruce Kramer,

Esq., Lawrence PL Cartelli, of counsel, and

Israel & Krasner by Arthur J. Israel having

appeared in opposition thereto.

NOW, upon motion of petitioner, and

after filing and reading the aforementioned

Order to Show Cause with proof of service

thereof, the affirmation of Lawrence P.

Cartelli in support of the contempt motion,

and after conducting a hearing on_ the

issues.

IT IS HEREBY FOUND THAT:

1) ANDONIS MORFESIS was properly

served the December 17, 1985 and January

16, 1986 Orders and ANDONIS MORFESIS

was properly served with the April 15, 1986

A38

hi taiasiaanineenaieinentiaaneeenillll

Order to Show Cause to Punish for

Contempt.

2) Upon the DHPD ifispection reports

dated January 3, 1986, January 11, 1986,

January 15, 1986, January 25, 1986,

February 6, 1986, February 11, 1986,

February 25, 1986, the testimony of Herman

Coombs, other documentary evidence

presented, respondent ANDONIS MORFESIS

is found to have failed to comply with the

December 17, 1985 and January 16, 1986

Orders, by failing to:

a) Provide 68° fahrenheit heat in

every portion of the premises used for living

when the outside temperature fell below 55°

during the hours of 6 a.m. and 10 p.m. on

each and every day required from December

17, 1985.

b) Supply every bath, shower,

washbasin and sink in everv dwelling unit

A39

————— st

with hot water at a constant minimum

temperature of 120° fahrenheit.

3) Such non-compliance constitutes

_ separate and distinct civil contempts of this

Court's December 17, 1985 and January 16,

1986 Orders, in that it was _ reasonably

calculated to and actually did defeat, impair,

impede and prejudice petitioner by thwarting

its efforts to have the subject premises

restored to minimum housing standards.

4) Such non-compliance was willful and

constitutes separate and distinct criminal

contempts of this Court's December 17, 1985

and January 16, 1986 Orders and warrants

the imposition of a criminal jail sentence.

ANDONIS MORFESIS is to be imprisoned for

a period of thirty days in the jail of the

county where the court is sitting. Said

sentence may be reduced in the discretion of

the court and the court may consider such

reduction when ANDONIS MORFESIS is

A40

brought before the court pursuant _ to

provisions contained herein. The sentence

imposed in this matter shall be _ served

consecutively to any other sentence imposed

by this court upon ANDONIS MORFESIS in

any other matter.

IT IS HEREBY DIRECTED:

1) That for his criminal contempts of

the Court's order for his failure to provide

adequate heat and hot water at the subject

premises, the Sheriff of the County of New

York or the Sheriff of any County within the

State of New York or other enforcement

officer of any jurisdiction wherein’ the

offender may be found, to whom a certified

copy of this Order shall be delivered shall

forthwith and without further process take

the body of ANDONIS MORFESIS and bring

him before this Court in Part L, 111 Centre

St., New York, N.Y., Room 526 for such

A4l

further disposition as may be ordered by

this Court.

If ANDONIS MORFESIS is arrested at a

time when the Court is not in session, he is

to be lodged with the Department of

Corrections and the Department of

Corrections shall produce him at 9:30 a.m.

when the Court shall next be in session.

SO ORDERED:

HON. LEWIS R. FRIEDMAN,

J.H.C.

ENTERED:

CLERK OF THE COURT

A42

(ORDER OF THE COURT OF APPEALS

DISMISSING APPEAL)

STATE OF NEW YORK

COURT OF APPEALS

At a session of the Court, held at

Court of Appeals Hall in the City of

Albany on the twelfth day of September

A.D. 1989

PRESENT, HON. SOL WACHTLER,

Chief Judge, Presiding.

Mo. No. 893 SSD 60

In the Matter of the Department of Housing

Preservation and Development of the City

of New York,

Respondent,

24 West 132 Equities, Inc.,

Respondent,

and Adonis Morfesis,

Appellant.

(Action No. 1)

and two additional actions:

Mtr of DHPD v. Chance Equities

(Action No. 2)

Mtr of DHPD v. 232 West Associates

(Action No. 3)

The appellant having filed notices of

appeal in the above title and due

consideration having been thereupon had, it

ORDERED, that the appeals be and the

same hereby are dismissed without costs, by

the Court sua sponte, upon the ground that

the order appealed from does not finally

determine the proceedings within the meaning

of the Constitution.

Donald M. Sheraw _

Clerk of the Court

A44

NEW YORK JUDICIARY LAW

§751. Punishment for Criminal Odatenete

1. Except as provided in subdivisions

(2), (3) and (4), punishment for a

contempt, specified in section seven hundred

fifty, may be by fine, not exceeding one

thousand dollars, or by imprisonment, not

exceeding thirty days, in the jail of the

county where the court is sitting, or both,

in the discretion of the court. Where the

punishment for contempt is based on a

violation of an order of protection issued

under section 530.12 or 530.13 of the

criminal procedure law, imprisonment may be

for a term not exceeding three months.

Where a person is committed to jail, for the

nonpayment of fine, imposed under this

section, he must be discharged at the

expiration of thirty days; but where he is

also committed for a definite time, the thirty

A45

days must be computed from the expiration

of the definite time.

Such a contempt, committed in the

immediate view and presence of the court,

may be punished summarily; when not so

committed, the party charged must be

notified of the accusation, and have a

reasonable time to make a defense.

§756. Application to punish for contempt;

procedure

An application to punish for a contempt

punishable civilly may be commenced by

notice of motion returnable before the court

or judge authorized to punish for the

offense, or by an order of such court or

judge requiring the accused to show cause

before it, or him, at a time and place

therein specified, why the accused should

not be punished for the alleged offense.

The application shall be noticed, heard and

determined in accordance with the procedure

A46

for a motion on notice in an action in such

court, provided, however, that, except as

provided in section fifty-two hundred and

fifty of the civil practice law and rules or

unless otherwise ordered by the court, the

moving papers shall be served no less than

ten and no more than thirty days before the

time at which the application is noticed to be

heard. The application shall contain on its

face a notice that the purpose of the hearing

is to punish the accused for a contempt of

court, and that such punishment may consist

of fine or imprisonment, or both, according

to law together with the following legend

printed or type written in a size equal to at

least eight point bold type:

WARNING:

YOUR FAILURE TO APPEAR

IN COURT MAY RESULT IN

YOUR IMMEDIATE ARREST

AND IMPRISONMENT FOR

CONTEMPT OF COURT.

B47

- ——e 61S) One Weg ne en ot eS

New York City Administrative Code:

§27-2097 (formerly D26-41.01)

Registration; time to file

a. The owner of a dwelling required to

the department in accordance with the

provisions of this article.

b. A registration statement shall be

filed:

(1) For every existing multiple

dwelling. A registration statement filed by

the present owner of a dwelling pursuant to

the requirements of the prior law. shall

constitute compliance with this section.

(5) Within such time as provided in

section 27-2099 of this article, in the case of

a change of ownership where registration is

required under this article.

c. An owner who is_ required to

statement every three years.

A48

d. An owner who is reguired to

statement on the registration date assigned

to that dwelling by the department whether

or not that owner filed a_ registration

statement for that dwelling within the

previous three years.

e. The registration date of a dwelling

shall be a calendar date and year assigned

by the department to that dwelling for the

purpose of registration on such date at

intervals of three years.

§27-2098 (formerly D26-41.03)

Registration statement; contents

a. The registration statement. shall

include the following information:

(1) An identification of the premises

by block and lot number, and by the street

numbers and names of all streets contiguous

to the dwelling, or by such other description

as will enable the department to locate the

dwelling....

A49

(2) An identification of the owner by

name, residence and business address. If

the owner is a corporation, the identification

shall include the name and address of such

corporation together with the names,

A eee dae ans anna

residences and business addresses of the

officers....

(4) If a dwelling is a_ multiple

dwelling, the number of a telephone within a

radius of 50 miles of the city limits where an

owner or officer, if the owner is a

corporation, or the managing agent may

reasonably be expected to be reached at all

times. The telephone number contained in

the registration statement shall not constitute

a public record and shall be accessible only

to duly authorized employees or officers of

the department and used exclusively by such

personnel in connection with an emergency

arising on the premises for which the owner

A50

ial

is responsible wnder the provisions of the

multiple dwelling law or this code. The

department may promulgate reguwations to

implement the provisions of this paragraph.

ik Le Rare wea te

(5) If a dwelling is a one- or

two-family dwelling and the owner does not

reside within the city, the name and address

of a natural person who is over the age of

twenty-one years and a resident of the city,

designated by the owner to receive service

of notices, orclers or summonses issued by

the department.

b. The registration statement shall be

signed by the owner or, if the owner is a

corporation, by any officer. In the

appropriate case, either the managing agent

or the designee described in paragraph five

of subdivision a of this section shal] sign the

statement to indicate consent to the

designation except that such consent is not

required if an owner or officer of a

A51

utets tes

Md Aisne Sd + willis

corporation is registered as the managing

agent.

§27-2099 (formerly D26-41.05)

Registration statement; change of ownership

or title. —

a. When the owner of a dwelling, who

is required to register under this article,

conveys title to the dwelling to another, the

transferor shall, on the day of such

transfer, notify the department by regular

mail of the name, residence and _ business

address of the new owner, or, if the new

owner is a corporation, of the name and

address of such _ corporation. The

registration statement in accordance’ with

section 27-2098 of this article shall be

presented by the new owner to the office of

the register of the city of New York, or the

county clerk as rquired by subdivision c of

this section if such owner records’ such

A52

deed, or to the department if the deed is

not recorded, and in no event more than

five days from the date of taking of title;

however, the failure by a new owner to file

such registration statement shall not impair

the validity of his or her title.

b. When the ownership of a dwelling

changes by operation of law, the new owner,

is required to register, shall file a

registration statement in accordance’ with

section 27-2098 of this article not more than

thirty days from the date that the title

devolved upon him or her.

§27-2100 (formerly D26-41.07)

Registration Statement; change of address

An owner, who is required to register

under this _ article, shall inform the

department and shall amend his or her

registration statement within five days if

there is a change of address of the owner, a

A53

change in the list of officers of the owner

corporation, or a change of address of any

of such listed officers A filing fee of five

dollars shall be required for the amended

registration statement.

A54

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.