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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 493 U.S. 1078

## Text

Tse 8 ts
(2

JAN 2 1990
: #, SPANIOL, J

No. 89-1020 \7- Saal
IN THE - —

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1989

ANDONIS MORFESIS,

Petitioner,

v.
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. .......

ii

Page

16

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

3]

35

Al

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 —........ .

iv

Page

A7

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 .............
re
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,
v.
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
register with HPD and update within five
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).

10

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

12

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

13

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

14

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.

15

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

i6

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.

17

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

18

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

19

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

20

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).

21

Oe

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

22

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.

23

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"

25

(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

26

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).

27

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

28

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

29

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.

30

(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

31

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

32

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

33

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.

34

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

35

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

Al

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.

A3

——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

A4

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

AS

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

Ao

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

A7

a

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.

A8

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

AQ

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
H.

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

re

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

¥
}
t

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,
v.

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
is

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
register under this article shall register with
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
register shall file a new” registration

statement every three years.

A48

d. An owner who is reguired to
register shall file a new registration

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

f

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0834%3A2. Public record. Not legal advice.