        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

853
CA 13-01023
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


RONALD C. VANYO, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ANN M. VANYO, DEFENDANT-APPELLANT.


JUSTIN S. WHITE, WILLIAMSVILLE, FOR DEFENDANT-APPELLANT.

LAW OFFICE OF RALPH C. LORIGO, WEST SENECA (ROBERT R. VARIO OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Erie County (John F. O’Donnell, J.), entered October 5, 2012.
The order and judgment imposed monetary sanctions on defendant.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.

     Memorandum: In this postjudgment proceeding to enforce the terms
of a judgment of divorce, defendant contends that Supreme Court erred
in directing her to pay plaintiff’s counsel fees and in imposing other
sanctions. We previously decided defendant’s appeal from the judgment
of divorce (Vanyo v Vanyo, 79 AD3d 1751, 1751), which judgment, inter
alia, directed that the former marital residence be sold and the
proceeds divided between the parties. Plaintiff, by several orders to
show cause, sought and obtained orders requiring defendant to
cooperate with various phases of the process of selling the property.
Those orders required defendant, among other things, to sign documents
allowing the property to be listed for sale, provide a key to the
residence to the realtor with whom the property was listed, permit
prospective purchasers and their agents access to the property, and
properly maintain the property. There were numerous court appearances
with respect to those orders to show cause and the relief requested,
at which the court and the parties discussed the events at issue on
appeal. In response to one such order to show cause, the court issued
an order directing defendant to “execute a listing contract prepared
by” the listing agent by the close of business on March 8th. The
order further provided that, if defendant failed to do so, she was to
pay a fine of $250 per day to plaintiff “until a proper listing
contract, as determined by th[e] [c]ourt, has been executed by”
defendant, and the court granted plaintiff’s request for counsel fees.
Another interim order appointed a receiver to sell the property on
behalf of defendant, and that receiver eventually prepared the
necessary papers permitting the property to be listed for sale.
                                 -2-                           853
                                                         CA 13-01023

     Contrary to defendant’s contention, the court properly calculated
the fines and counsel fees without first holding a hearing.
Defendant’s contention that she provided a key by mail in June is
belied by her submission of emails establishing that no key was
received until July 10th. Those emails also belie her contention that
a key was hand-delivered on July 3rd, and in any event she failed to
submit an affidavit from the unidentified person who allegedly hand-
delivered the key. Under these circumstances, the court’s
determination that defendant had failed to comply with the earlier
order, “without a hearing, was a provident exercise of discretion,
especially in light of defendant’s failure to submit competent . . .
evidence in support of her assertion[s], and that [determination] was
consistent with the court’s own observations and familiarity with the
history of the action” (Roach v Benjamin, 78 AD3d 468, 469; see
Skidelsky v Skidelsky, 279 AD2d 356, 356).

     Finally, the evidence in the record establishes that there were
several interim court appearances at which counsel for the parties
discussed the key and access to the property, the state of repair of
the property, and the execution of documents required to list the
property. The court, after hearing from counsel, made determinations
at those appearances concerning the issues that are now raised on
appeal, but we do not consider those determinations because defendant
failed to include the transcripts of those appearances in the record
on appeal. Defendant, “as the appellant[], must suffer the
consequences of having submitted an incomplete record” (Gaiter v City
of Buffalo Bd. of Educ., 118 AD3d 1507, 1508; see Matter of Lopez v
Lugo, 115 AD3d 1237, 1237).




Entered:   September 26, 2014                   Frances E. Cafarell
                                                Clerk of the Court
