                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 23, 2014                   517552
________________________________

PENELOPE L. SULLIVAN HUSH
   et al.,
                    Respondents,
      v                                     MEMORANDUM AND ORDER

JAMES E. TAYLOR et al.,
                    Appellants,
                    et al.,
                    Defendants.
________________________________


Calendar Date:   September 3, 2014

Before:   Peters, P.J., Lahtinen, Garry, Rose and Clark, JJ.

                             __________


      Hiscock & Barclay, LLP, Syracuse (Jon P. Devendorf of
counsel), for appellants.

      D'Arrigo & Cote, Liverpool (Mario D'Arrigo of counsel), for
respondents.

                             __________


Garry, J.

      Appeal from an order   of the Supreme Court (Cerio Jr., J.),
entered September 25, 2012   in Madison County, which partially
granted plaintiffs' motion   to, among other things, hold
defendants James E. Taylor   and Carol A. Larrabee in civil
contempt.

      Plaintiffs are owners of parcels of real property near
Oneida Lake in Madison County. In 2006, defendants James E.
Taylor and Carol A. Larrabee (hereinafter collectively referred
to as defendants) acquired a nearby 60-foot-wide waterfront lot
(hereinafter the passageway) over which plaintiffs hold certain
                              -2-                517552

deeded rights-of-way and easements. Thereafter, plaintiffs
commenced this action alleging that defendants had impeded their
use of the passageway and seeking, among other things, a
declaration of their rights. Following joinder of issue,
plaintiffs moved for summary judgment. In 2010, Supreme Court
granted the motion and issued an order declaring that plaintiffs
had express rights-of-way and easements over the passageway for
access to the lake, as well as the right to construct, maintain
and use a dock. Defendants were further directed, among other
things, to maintain the passageway and not to interfere with
plaintiffs' use of it. This Court affirmed the 2010 order (84
AD3d 1532 [2011]).

      In July 2012, plaintiffs moved for an order holding
defendants in civil contempt and directing them to comply with
the 2010 order. Plaintiffs alleged that defendants had
interfered with their use of the passageway by, among other
things, partially blocking it with a fence and leaving junk
boats, debris and other personal property on it, and had
prevented them from properly placing, constructing and using a
dock. After considering defendants' opposing submissions and
viewing the property, Supreme Court partially granted plaintiffs'
motion, found that defendants were in contempt of the 2010 order,
and ordered them, among other things, to remove the fence and
personal property from the passageway and to cease and desist
from interfering with plaintiffs' use of the passageway and dock,
including reasonable recreational uses consistent with accessing
and using the lake. Defendants appeal.

      To establish civil contempt, plaintiffs were required to
demonstrate by clear and convincing evidence that defendants
knowingly disobeyed a clear and unequivocal court order and that
such conduct prejudiced plaintiffs' rights (see Town of Copake v
13 Lackawanna Props., LLC, 73 AD3d 1308, 1309 [2010]; Beneke v
Town of Santa Clara, 61 AD3d 1079, 1080-1081 [2009]. Defendants
contend that the requisite showing was not made, as they did not
disobey a clear and unequivocal order. In defendants' view,
Supreme Court's 2010 order was limited to a declaration that
plaintiffs have a right of ingress and egress over the passageway
that does not include any property rights in the passageway
itself; defendants thus contend that they were not prohibited
                              -3-                517552

from partially fencing the passageway or placing other property
on it, provided that plaintiffs' reasonable right of passage was
not impaired (see Lewis v Young, 92 NY2d 443, 449 [1998]).
However, the rule relied upon by defendants applies to rights-of-
way that are not specifically defined or bounded by the language
of the grant (see Ledley v D.J. & N.A. Mgt., 228 AD2d 482, 482
[1996]; 5-40 Warren's Weed, New York Real Property § 40.17
[2014]). Here, the 2010 order determined that the deeds granted
plaintiffs a defined 60-foot-wide easement and right-of-way
consisting of the passageway, and that plaintiffs further
possessed rights to construct, maintain and use a dock (84 AD3d
at 1533-1534). The 2010 order also expressly directed defendants
to keep the passageway "free of all brush and tall grasses, junk
boats, debris, and other personal property" that interfered or
could interfere with plaintiffs' rights, and to maintain the
passageway in an unobstructed fashion. Defendants raised no
factual challenge to plaintiffs' claim that the fencing was
partially obstructing the passageway, that they had permitted
tall grass and brush to grow, and that they had allowed the
accumulation of personal property and debris upon the passageway.
Accordingly, Supreme Court correctly found that they violated a
clear and unequivocal mandate in these respects (see Hamilton v
Murphy, 79 AD3d 1210, 1212-1213 [2010], lv dismissed 16 NY3d 794
[2011]).

      Although the 2010 order did not specify the precise
location where plaintiffs were to construct their dock, it did
direct defendants not to interfere with plaintiffs' right to
construct and use a dock "within the northerly extensions" of the
passageway. Plaintiffs submitted a survey map and other evidence
demonstrating that defendants had placed their dock in the center
of the passageway in such a manner that insufficient space was
left in the northerly end for plaintiffs to position or use a
dock without infringing on the rights of a neighboring landowner.
Further, plaintiffs alleged that defendants had prohibited them
from anchoring their dock on the passageway's foreshore, and had
instead required them to anchor it at the water's edge, where it
was insecure and subject to damage from high water and winds.
Defendants did not deny these factual allegations; thus, contrary
to their claim, no evidentiary hearing was required (compare
Automated Waste Disposal, Inc. v Mid-Hudson Waste, Inc., 50 AD3d
                              -4-                517552

1073, 1074 [2008]). Supreme Court correctly determined as a
matter of law that its mandate prohibiting defendants from
interfering with plaintiffs' construction and use of a dock was
clear and unequivocal and that defendants had disobeyed it (see
Levy v Morgan, 92 AD3d 1118, 1121 [2012]; Matter of Board of
Educ. of City School Dist. of City of N.Y. v Mills, 25 AD3d 952,
954 [2006]).

      We reject defendants' claim that the contempt finding was
improper in that they allegedly believed their actions were
justified and, thus, were not willfully disobedient. No finding
of willfulness or deliberate disregard is required to sustain a
civil contempt determination; "the mere act of disobedience,
regardless of motive, is sufficient . . . if such disobedience
defeats, impairs, impedes or prejudices the rights of a party"
(Matter of Bonnie H., 145 AD2d 830, 832 [1988], lv dismissed 74
NY2d 650 [1989]; see El-Dehdan v El-Dehdan, 114 AD3d 4, 16-17
[2013]). As discussed above, plaintiffs established without
contradiction that their rights to use the passageway and to
build and use a dock were prejudiced, and defendants have made no
claim that they were not aware of the 2010 order. Accordingly,
Supreme Court did not err in holding them in civil contempt (see
Incorporated Vil. of Plandome Manor v Ioannou, 54 AD3d 365, 366
[2008]).

      Finally, we disagree with defendants' contention that
Supreme Court improperly permitted plaintiffs to use the contempt
motion to expand their rights beyond the scope of the 2010 order.
Plaintiffs did not limit the relief sought in their motion to
contempt, but also sought a further declaration of their rights.
The parties disputed the extent of plaintiffs' permissible use of
the passageway, and Supreme Court thus properly examined the
common grantor's intent by examining the language of the deeds
(see Dowd v Ahr, 78 NY2d 469, 473 [1991]), relying upon language
in the deed listing activities that plaintiffs were prohibited
from conducting in the passageway, such as constructing buildings
or other structures and leaving refuse and garbage behind.
Defendants neither challenged the authenticity of the deeds nor
submitted evidence establishing a contrary intent. Upon review,
we find no error in the court's determination based thereon,
allowing plaintiffs' use of the passageway and the area
                              -5-                  517552

surrounding their dock for reasonable recreation that was not
expressly prohibited and was consistent with accessing and using
the lake, such as sunbathing (see Marra v Simidian, 79 AD2d 1046,
1047 [1981]). Notably, the court based no part of its contempt
determination on plaintiffs' rights as newly declared in the more
recent order.

     Peters, P.J., Lahtinen, Rose and Clark, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
