Preview
FILED: OSWEGO COUNTY CLERK 12/08/2022 01:19 PM INDEX NO. EFC-2021-1274
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/08/2022
PRESENT: Scott J. Del Conte
Justice of the Supreme Court
STATE OF NEW YORK
SUPREME COURT COUNTY OFOSWEGO
ELIZABETH BOARDWAY,
Plaintiff, ATTORNEY AFFIRMATION
-vs- IN SUPPORT OF CONTEMPT
MOTION
ANTHONY Index No. EFC- 2021-1274
HALSTEAD,
Defendant.
Joseph P. Morawski, Esq., an attorney duly licensed to practice law in the State
of New York, as an officer of the Court, affirms as follows:
1. I am the attorney for the Plaintiff in the above captioned matter and submit
this Affirmation in support of Plaintiff's motion to enforce the Decision, Order and
Judgment of the Court dated October 27, 2022, to find Defendant in contempt of this
Court for his willful failure to follow the Decision, Order and Judgment of this Court by
failing sign the Quitclaim deed as directed to by the Court and to punish him with
sanctions and award Plaintiff money damages caused by Defendanes delay in
attorneys'
complying with the Court Order; and to award fees to Plaintiff in the amount
of $2,200.00 for having to bring this motion.
2. The Decision, Order and Judgment of the Court dated is annexed hereto
and marked Exhibit A.
3. The Decision, Order and Judgment granted, among other things, the
following relief to Plaintiff:
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NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/08/2022
a. Plaintiff's motion for a default judgment pursuant to CPLR 3215
was granted in all respects.
b. Defendant Anthony Halstead was found by the Court to have no
legal or equitable right, title or interest in the subject premises, which were more
particularly described in a Warranty Deed from Plaintiff to Defendant dated May 22,
2015 and recorded on as instrument number R-2105-004501 on May 28, 2015 in the
Oswego County Clerk's Office (NYSCEF Doc. 28)
c. Plaintiff was entitled to actual partition, allocating the real property
to her in its entirety, subject to lawful creditor claims.
d. Plaintiff is the sole owner of the subject premises, shall have full
and exclusive possession of the premises, with absolute right to sell the premises and
retain allof the net proceeds of any future sale.
e. Plaintiff established her entitlement to a constructive trust over the
premises and Defendant shall execute a quitclaim deed transferring his record interest
in the property to Plaintiff along with other documents necessary to comply with this
Decision, Order and Judgment.
4. Based on the testimony adduced at trial, itwas clear that Defendant has a
history of committing violent acts against the Plaintiff. In fact, Defendant was
incarcerated for a period of time in 2015 and 2016 as a result of a felony conviction for
violent acts he committed against Plaintiff.
5. As such, I am not surprised by Defendant's refusal to follow the directives
of the Court and unfortunately, Plaintiff is leftwith no choice other than to seek this
Court's intervention to enforce the order and to find Defendant in contempt of this Court.
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NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/08/2022
6. Upon receipt of the Court's decision, I,as Plaintiff's counsel, prepared the
necessary documents to effect the transfer of the subject premises to Plaintiff.
Defendant, during the course of this litigation provided two addresses for receipt of mail.
I prepared two full sets of documents, and each were sent to Defendant at the two
addresses provided by him. I further provided Defendant with a copy of the Court's
decision, which he already had received and with a letter of instruction and a return
envelope with prepaid postage. Annexed hereto and marked Exhibit B is a copy of my
letters together with the proposed quit claim deed, TP 584 form and RP 5217 form.
7. Said documents were mailed from my office to Defendant. One set of
documents was returned and the other set was not. Accordingly, itis presumed said
document was received by Defendant.
8. Defendant has had more than thirty days to sign and execute the
documents to comply with the Court's Decision, Order and Judgment. Defendant has
not executed the documents and has not contacted my office with any questions or
concerns about these documents.
9. Given Defendant's history of non-compliance and his history of violence
against the Plaintiff I am of the belief that Defendant is willfully refusing to follow the
Court order and is in contempt of this Court.
10. I would also note that Defendant has not filed a Notice of Appeal and the
time to file said Notice has lapsed.
11. in addition to the foregoing, Plaintiff and Defendant have a Family Court
matter pending in Oswego County related to the two children the parties have in
common. Plaintiff advised my that she had a Court Date on November 29, 2022.
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NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/08/2022
Plaintiff attempted to have Defendant execute the documents at Family Court. Plaintiff
advises that he refused and stated that he was never going to sign the documents as
directed to by the Court, clearly stating his intention to ignore the Court's directive.
12. Based upon the foregoing, Plaintiff believes the only way to guarantee
Defendant's compliance with the order would be to have Defendant ordered to appear
in Court and forced to sign the necessary documents in Court. Otherwise, itis my belief
he will never sign the documents.
13. Defendant sole aim appears to be to frustrate Plaintiff at every opportunity
and make her life as miserable as possible. Defendant's actions have additional
potential consequences to his children. Plaintiff is in the middle of a complicated
refinance and the bank is requiring the signed quitclaim deed. Defendant knows this
and his delay in signing the quitclaim deed is causing Plaintiff additional and quantifiable
money damages in the form of increased interest rates, which will cost Plaintiff
potentially thousands of dollars. Defendant's willful failure to comply could also result in
Plaintiff having to sell the property and relocate Plaintiff and Defendant's children from
their home.
14. Defendant's conduct is willful and inexplicable.
15. Accordingly, Plaintiff further respectfully requests the Court find Defendant
in contempt of this Court for his willful failure to comply with the Court's Decision, Order
and Judgment. Plaintiff respectfully requests the Court sanction Defendant for his
Contempt, pay monetary damages caused by Defendant's contempt to Plaintiff and
attorneys'
order Defendant to pay fees to Plaintiff for having to filethis motion, which
should have been unnecessary.
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attorneys'
16. Plaintiff requests an award of fees in the amount of $2,200.00
for having to bring this motion. Annexed hereto and marked Exhibit C is a copy of the
retainer agreement between Plaintiff and our office. My hourly rate for this matter is
$250.00 per hour and I have spent 3.0 hours preparing this Motion for filing with the
Court. I anticipate there will be at least two Court appearances to ensure Defendanes
attendance at Court which will require travel from my office in Onondaga County to
Oswego County. I anticipate I will require 2 hours for each appearance and I anticipate
an additional hour of my time will be necessary to draft and complete any order for the
Court. Additionally, there will be Court costs and process serving fees of approximately
$200.00. Itwill cost $45.00 to file the motion and an additional $155. To serve process
on Defendant. AII of these fees would be avoided ifDefendant had the common sense
to comply with the Court's order.
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NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/08/2022
WHEREFORE, your deponent respectfully requests a court order as follows:
1. Punishing Anthony Halstead for contempt of this Court for his willful
violation of the Decision, Order and Judgment of this Court dated October 27, 2022;
2. Directing Anthony Halstead to immediately sign a quitclaim deed at said
court appearance;
3. Directing Anthony Halsted to pay money damages to Plaintiff for his willful
failure to comply with the Court's Decision, Order and Judgment; and
4. An award of counsel fees and costs in the amount of $2,200.00 incurred
on behalf of Plaintiff for having to bring this motion to guarantee Mr. Halstead's
compliance with the Court's Decision, Order and Judgment.
Dated: November 30, 2022
in & Melvin, PLLC
seph P. Morawski, Esq. of Counse/
Attorneys for Plaintiff
217 South Salina Street, Seventh Floor
Syracuse, New York 13202
Telephone: (315) 422-1311
Email: jmorawski@melvinlaw.com
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Preview
FILED: OSWEGO COUNTY CLERK 12/08/2022 01:19 PM INDEX NO. EFC-2021-1274 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/08/2022 PRESENT: Scott J. Del Conte Justice of the Supreme Court STATE OF NEW YORK SUPREME COURT COUNTY OFOSWEGO ELIZABETH BOARDWAY, Plaintiff, ATTORNEY AFFIRMATION -vs- IN SUPPORT OF CONTEMPT MOTION ANTHONY Index No. EFC- 2021-1274 HALSTEAD, Defendant. Joseph P. Morawski, Esq., an attorney duly licensed to practice law in the State of New York, as an officer of the Court, affirms as follows: 1. I am the attorney for the Plaintiff in the above captioned matter and submit this Affirmation in support of Plaintiff's motion to enforce the Decision, Order and Judgment of the Court dated October 27, 2022, to find Defendant in contempt of this Court for his willful failure to follow the Decision, Order and Judgment of this Court by failing sign the Quitclaim deed as directed to by the Court and to punish him with sanctions and award Plaintiff money damages caused by Defendanes delay in attorneys' complying with the Court Order; and to award fees to Plaintiff in the amount of $2,200.00 for having to bring this motion. 2. The Decision, Order and Judgment of the Court dated is annexed hereto and marked Exhibit A. 3. The Decision, Order and Judgment granted, among other things, the following relief to Plaintiff: 1 of 6 FILED: OSWEGO COUNTY CLERK 12/08/2022 01:19 PM INDEX NO. EFC-2021-1274 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/08/2022 a. Plaintiff's motion for a default judgment pursuant to CPLR 3215 was granted in all respects. b. Defendant Anthony Halstead was found by the Court to have no legal or equitable right, title or interest in the subject premises, which were more particularly described in a Warranty Deed from Plaintiff to Defendant dated May 22, 2015 and recorded on as instrument number R-2105-004501 on May 28, 2015 in the Oswego County Clerk's Office (NYSCEF Doc. 28) c. Plaintiff was entitled to actual partition, allocating the real property to her in its entirety, subject to lawful creditor claims. d. Plaintiff is the sole owner of the subject premises, shall have full and exclusive possession of the premises, with absolute right to sell the premises and retain allof the net proceeds of any future sale. e. Plaintiff established her entitlement to a constructive trust over the premises and Defendant shall execute a quitclaim deed transferring his record interest in the property to Plaintiff along with other documents necessary to comply with this Decision, Order and Judgment. 4. Based on the testimony adduced at trial, itwas clear that Defendant has a history of committing violent acts against the Plaintiff. In fact, Defendant was incarcerated for a period of time in 2015 and 2016 as a result of a felony conviction for violent acts he committed against Plaintiff. 5. As such, I am not surprised by Defendant's refusal to follow the directives of the Court and unfortunately, Plaintiff is leftwith no choice other than to seek this Court's intervention to enforce the order and to find Defendant in contempt of this Court. 2 of 6 FILED: OSWEGO COUNTY CLERK 12/08/2022 01:19 PM INDEX NO. EFC-2021-1274 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/08/2022 6. Upon receipt of the Court's decision, I,as Plaintiff's counsel, prepared the necessary documents to effect the transfer of the subject premises to Plaintiff. Defendant, during the course of this litigation provided two addresses for receipt of mail. I prepared two full sets of documents, and each were sent to Defendant at the two addresses provided by him. I further provided Defendant with a copy of the Court's decision, which he already had received and with a letter of instruction and a return envelope with prepaid postage. Annexed hereto and marked Exhibit B is a copy of my letters together with the proposed quit claim deed, TP 584 form and RP 5217 form. 7. Said documents were mailed from my office to Defendant. One set of documents was returned and the other set was not. Accordingly, itis presumed said document was received by Defendant. 8. Defendant has had more than thirty days to sign and execute the documents to comply with the Court's Decision, Order and Judgment. Defendant has not executed the documents and has not contacted my office with any questions or concerns about these documents. 9. Given Defendant's history of non-compliance and his history of violence against the Plaintiff I am of the belief that Defendant is willfully refusing to follow the Court order and is in contempt of this Court. 10. I would also note that Defendant has not filed a Notice of Appeal and the time to file said Notice has lapsed. 11. in addition to the foregoing, Plaintiff and Defendant have a Family Court matter pending in Oswego County related to the two children the parties have in common. Plaintiff advised my that she had a Court Date on November 29, 2022. 3 of 6 FILED: OSWEGO COUNTY CLERK 12/08/2022 01:19 PM INDEX NO. EFC-2021-1274 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/08/2022 Plaintiff attempted to have Defendant execute the documents at Family Court. Plaintiff advises that he refused and stated that he was never going to sign the documents as directed to by the Court, clearly stating his intention to ignore the Court's directive. 12. Based upon the foregoing, Plaintiff believes the only way to guarantee Defendant's compliance with the order would be to have Defendant ordered to appear in Court and forced to sign the necessary documents in Court. Otherwise, itis my belief he will never sign the documents. 13. Defendant sole aim appears to be to frustrate Plaintiff at every opportunity and make her life as miserable as possible. Defendant's actions have additional potential consequences to his children. Plaintiff is in the middle of a complicated refinance and the bank is requiring the signed quitclaim deed. Defendant knows this and his delay in signing the quitclaim deed is causing Plaintiff additional and quantifiable money damages in the form of increased interest rates, which will cost Plaintiff potentially thousands of dollars. Defendant's willful failure to comply could also result in Plaintiff having to sell the property and relocate Plaintiff and Defendant's children from their home. 14. Defendant's conduct is willful and inexplicable. 15. Accordingly, Plaintiff further respectfully requests the Court find Defendant in contempt of this Court for his willful failure to comply with the Court's Decision, Order and Judgment. Plaintiff respectfully requests the Court sanction Defendant for his Contempt, pay monetary damages caused by Defendant's contempt to Plaintiff and attorneys' order Defendant to pay fees to Plaintiff for having to filethis motion, which should have been unnecessary. 4 of 6 FILED: OSWEGO COUNTY CLERK 12/08/2022 01:19 PM INDEX NO. EFC-2021-1274 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/08/2022 attorneys' 16. Plaintiff requests an award of fees in the amount of $2,200.00 for having to bring this motion. Annexed hereto and marked Exhibit C is a copy of the retainer agreement between Plaintiff and our office. My hourly rate for this matter is $250.00 per hour and I have spent 3.0 hours preparing this Motion for filing with the Court. I anticipate there will be at least two Court appearances to ensure Defendanes attendance at Court which will require travel from my office in Onondaga County to Oswego County. I anticipate I will require 2 hours for each appearance and I anticipate an additional hour of my time will be necessary to draft and complete any order for the Court. Additionally, there will be Court costs and process serving fees of approximately $200.00. Itwill cost $45.00 to file the motion and an additional $155. To serve process on Defendant. AII of these fees would be avoided ifDefendant had the common sense to comply with the Court's order. 5 of 6 FILED: OSWEGO COUNTY CLERK 12/08/2022 01:19 PM INDEX NO. EFC-2021-1274 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/08/2022 WHEREFORE, your deponent respectfully requests a court order as follows: 1. Punishing Anthony Halstead for contempt of this Court for his willful violation of the Decision, Order and Judgment of this Court dated October 27, 2022; 2. Directing Anthony Halstead to immediately sign a quitclaim deed at said court appearance; 3. Directing Anthony Halsted to pay money damages to Plaintiff for his willful failure to comply with the Court's Decision, Order and Judgment; and 4. An award of counsel fees and costs in the amount of $2,200.00 incurred on behalf of Plaintiff for having to bring this motion to guarantee Mr. Halstead's compliance with the Court's Decision, Order and Judgment. Dated: November 30, 2022 in & Melvin, PLLC seph P. Morawski, Esq. of Counse/ Attorneys for Plaintiff 217 South Salina Street, Seventh Floor Syracuse, New York 13202 Telephone: (315) 422-1311 Email: jmorawski@melvinlaw.com 6 of 6