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IN A CRIMINAL CONTEMPT PROCEEDING BASED UPON AN ACT WHICH WAS NOT COMMITTED IN THE IMMEDIATE VIEW AND PRESENCE OF THE COURT, THE CONTEMPT MOTION MUST BE PERSONALLY SERVED; HERE THERE WAS NO PROOF THE MOTION WAS PROPERLY SERVED, DEPRIVING FAMILY COURT OF JURISDICTION (THIRD DEPT).

The Third Department, reversing Family Court, determined the criminal contempt motion against father for bringing a recording device into court should have been dismissed because there was no proof father was personally served with the motion:

A finding of criminal contempt, as is pertinent here, must be supported by a showing of “[d]isorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority” (Judiciary Law § 750 [A] [1]), and proof of guilt must be established beyond a reasonable doubt … . “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” (Judiciary Law § 751 [1] …). To this end, a “criminal contempt proceeding requires personal service on the contemnor” … . “A court lacks personal jurisdiction over a respondent who is not properly served with process” and, “[w]hen the requirements for service of process have not been met, it is irrelevant that the respondent may have actually received the documents, because notice received by means other than those authorized by statute does not bring a respondent within the jurisdiction of the court” … .

Family Court acknowledged in its written order that it was unable to summarily hold the father in contempt, as the only direct evidence of his possession of a prohibited recording device was discovered outside of the courtroom by court officers who were not immediately available to testify. As such, personal service of the motion charging the father with contempt was required. Nothing in the record reflects that such service was effectuated. We note that, to the extent that the court’s notice of motion indicates that it was mailed to the father to a Pennsylvania address, there is similarly no affidavit of service/mailing and no receipt of mailing in the record. Matter of Ruoyao P. (Zhechen P.), 2025 NY Slip Op 04065, Third Dept 7-3-25

Practice Point: Consult this decision for the procedural requirements for a motion charging criminal contempt for an act which was not committed in the immediate view and presence of the court. The motion must be personally served in accordance with the CPLR. Failure of proper service deprives the court of jurisdiction.

 

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