Costanza v. Costanza

—Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: *1044Supreme Court did not err in finding defendant in civil contempt of court based upon his violation of this Court’s order regarding his visitation rights (Costanza v Costanza, 199 AD2d 988; see, Cannizzaro v Cannizzaro, 186 AD2d 776, 778; Bergin v Peplowski, 173 AD2d 1012, 1013; Richards v Estate of Kaskel, 169 AD2d 111, 121, Iv dismissed 78 NY2d 1042). A hearing is not required unless there is a factual issue in dispute that needs to be resolved (see, Matter of Bonnie H., 145 AD2d 830, Iv dismissed 74 NY2d 650). Here, the facts regarding defendant’s conduct are not in dispute.

"Judiciary Law § 773 permits an aggrieved party to recover costs and expenses, as well as the statutory fine of $250, where no actual damages have been established as a result of the contempt [citation omitted]” (Glanzman v Fischman, 143 AD2d 880, 881, lv dismissed 74 NY2d 792). Moreover, "[t]he reasonable counsel fees which are incurred in connection with an application to punish another for contempt are properly included as an item of the aggrieved party’s 'costs and expenses’ ” (Glanzman v Fischman, supra, at 881; see, Quantum Heating Servs. v Austern, 121 AD2d 437). Here, the court properly awarded plaintiff costs and expenses, including the reasonable counsel fees she incurred in connection with the contempt application, but it failed to determine the amount of those costs and expenses, including the reasonable counsel fees. We, therefore, remit the matter to Supreme Court to determine the amount of costs and expenses, including the reasonable counsel fees incurred by plaintiff in connection with the contempt application, and to conduct a hearing thereon if it is so advised. (Appeal from Order of Supreme Court, Ontario County, Harvey, J.—Civil Contempt.) Present— Green, J. P., Wesley, Callahan, Doerr and Davis, JJ.