Contempt – New York Appellate Digest

DIRECT APPEAL, AS OPPOSED TO AN ARTICLE 78, WAS APPROPRIATE IN THIS CONTEMPT PROCEEDING; MOTHER SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO ARGUE AGAINST THE CONTEMPT ADJUDICATIONS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined direct appeal of the contempt adjudications in this custody matter, as opposed to an Article 78 action, was appropriate under the circumstances. The contempt adjudications were vacated because mother was not given the opportunity to argue she should not be held in contempt:

… [T]he mother’s challenge to the summary contempt adjudications is properly raised via direct appeal from the order under the circumstances of this case. Although a direct appeal from an order punishing a person summarily for contempt committed in the immediate view and presence of the court ordinarily does not lie and a challenge must generally be brought pursuant to CPLR article 78 to allow for development of the record (see Judiciary Law §§ 752, 755 …), an appeal from such an order is appropriately entertained where, as here, there exists an adequate record for appellate review … .

With respect to the merits, “[b]ecause contempt is a drastic remedy, . . . strict adherence to procedural requirements is mandated” … . Here, we conclude that the court committed reversible error by failing to afford the mother the requisite “opportunity, after being ‘advised that [she] was in peril of being adjudged in contempt, to offer any reason in law or fact why that judgment should not be pronounced’ ” … . S.P. v M.P., 2022 NY Slip Op 06377, Fourth Dept 11-10-22

Practice Point: A contempt adjudication based upon actions in the court’s presence are usually properly contested in an Article 78 proceeding. Under the circumstances here, direct appeal was appropriate. The contempt adjudications were vacated because mother (in this custody proceeding) was not given the opportunity to contest them.

November 10, 2022/0 Comments/by Bruce Freeman

Attorneys, Contempt

PLAINTIFF’S COUNSEL SHOULD HAVE BEEN HELD IN CRIMINAL CONTEMPT FOR ISSUING SUBPOENAS IN DEFIANCE OF AN ORDER STAYING THE PROCEEDINGS; DIFFERENCE BETWEEN CIVIL AND CRIMINIAL CONTEMPT EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s counsel should have been found in criminal contempt for issuing subpoenas in defiance of Supreme Court’s order staying any further action in the case:

In contrast to civil contempt, because the purpose of criminal contempt is to vindicate the authority of the court, no showing of prejudice is required … . Instead, “[a]llegations of willful disobedience of a proper judicial order strike at the core of the judicial process and implicate weighty public and institutional concerns regarding the integrity of and respect for judicial orders” … . …

Notwithstanding [the court’s order], the plaintiff’s counsel issued subpoenas on six separate occasions. When … the Supreme Court reiterated the terms of the stay, both via interim relief granted in the order to show cause and in a separate order, the plaintiff’s counsel did not desist but instead served four more subpoenas and moved to compel the production of subpoenaed documents. This conduct evidences a lack of “respect for judicial orders” and warranted holding the plaintiff’s counsel in criminal contempt … . Under the circumstances of this case, we deem the statutory maximum sanction of $1,000 per offense warranted and therefore impose a total sanction of $10,000. Madigan v Berkeley Capital, LLC, 2022 NY Slip Op 03237, Second Dept 5-18-22

Practice Point: Criminal contempt seeks to vindicate the authority of the court. Therefore no showing of prejudice is required. Here plaintiff’s counsel issued subpoenas in defiance of an order of the court. A $10,000 sanction for criminal contempt was imposed on the attorney by the appellate court.

May 18, 2022/by Bruce Freeman

Attorneys, Civil Procedure, Contempt

A SUBPOENA ISSUED BY AN ATTORNEY IS A “JUDICIAL” SUBPOENA SUBJECT TO A CONTEMPT PROCEEDING WITHOUT THE NEED TO FIRST SEEK A COURT ORDER COMPELLING COMPLIANCE (FIRST DEPT).

The First Department, reversing Supreme Court, determined a subpoena issued by an attorney was a “judicial” subpoena and defendant Patterson’s failure to appear for a deposition and produce documents was punishable by contempt without the need to first obtain a court order compelling compliance:

Critical to the resolution of this appeal is whether this type of subpoena is a “judicial” subpoena, as defined by CPLR 2308(a), or a “non-judicial” subpoena, as defined by CPLR 2308(b). … [T]he disobedience of a judicial subpoena is punishable by contempt of court, while a person served with a non-judicial subpoena cannot be held in contempt unless the court first issues an order compelling compliance with the subpoena that is then disobeyed … .

We find that the subpoena is a “judicial” subpoena, the disobedience of which is punishable by contempt … . CPLR 2308(a) embraces subpoenas issued by an officer of the court (such as an attorney) at any stage of a judicial proceeding, regardless of whether the subpoena was specifically returnable in court … . Cadlerock Joint Venture, L.P. v Patterson, 2021 NY Slip Op 06535, First Dept 11-23-21

November 23, 2021/by Bruce Freeman

Contempt, Contract Law, Education-School Law, Family Law

THE SEPARATION AGREEMENT PROVIDED THAT THE PARTIES “SHALL” CONSULT EACH OTHER ON HEALTH DECISIONS FOR THE CHILD BUT FATHER HAD THE CHILD INOCULATED WITHOUT CONSULTING MOTHER; BECAUSE THE PARTIES AGREED THE CHILD WOULD ATTEND PUBLIC SCHOOL, AND INOCULATION IS REQUIRED BY THE PUBLIC HEALTH LAW, MOTHER DID NOT DEMONSTRATE SHE WAS PREJUDICED BY THE BREACH OF THE SEPARATION AGREEMENT; THEREFORE MOTHER’S MOTION TO HOLD HUSBAND IN CONTEMPT WAS PROPERLY DENIED (SECOND DEPT).

The Second Department determined Supreme Court properly denied defendant-mother’s motion to hold plaintiff-father in contempt for having the child inoculated for common childhood diseases. The separation agreement required that the parties consult each other on health decisions for the child. Father did not consult with mother before having the child inoculated. The separation agreement did not unequivocally prohibit plaintiff from having the child inoculated and the parties agreed the child would attend public school, for which inoculation is required. Therefore defendant was unable to demonstrate a violation of the separation agreement which prejudiced her:

The separation agreement provided that “[t]he parties shall continue to cooperate and consult with one another to arrive at decisions which they believe are in the best interest of the [c]hild with respect to health.” Despite this language, on two occasions, the plaintiff, without first consulting with the defendant, took the child, who had not received any vaccinations since the age of two, to get vaccinated.

However, the parties’ separation agreement did not unequivocally prohibit the plaintiff from having the child inoculated. Moreover, in light of the parties’ express intention to maintain the child’s enrollment in public education, and New York State’s then newly enacted public school vaccine mandate requiring such inoculations in order for the child to continue to attend public school (see Public Health Law § 2164; C.F. v New York City Dept. of Health & Mental Hygiene, 191 AD3d 52, 70), the defendant cannot demonstrate that she was prejudiced by the failure of the plaintiff to consult with her prior to having the child inoculated. Heffer v Krebs, 2021 NY Slip Op 04542, Second Dept 7-29-21

July 28, 2021/by Bruce Freeman

Attorneys, Contempt, Family Law

ALTHOUGH THE CHILD-SUPPORT CONTEMPT PROCEEDING WAS IN SUPREME COURT, NOT FAMILY COURT, PLAINTIFF HAD A RIGHT TO COUNSEL UNDER THE JUDICIARY LAW; PLAINTIFF’S COUNSEL WAS INEFFECTIVE BECAUSE NO MEDICAL EVIDENCE WAS PRESENTED TO SUPPORT PLAINTIFF’S TESTIMONY HE WAS UNABLE TO WORK (SECOND DEPT).

The Second Department, after noting plaintiff was entitled to counsel under Judiciary Law 35 (8) in this child-support contempt proceeding in Supreme Court, determined plaintiff’s counsel was ineffective. Plaintiff testified he could not meet his child-support obligations because of medical problems, but counsel did not present any medical evidence:

The plaintiff was denied effective assistance of counsel in connection with that branch of the defendant’s cross motion which was to hold him in contempt for wilful violation of the 2013 order. Under Judiciary Law § 35(8), a person has the right to the assistance of counsel in any matter before the Supreme Court, under circumstances whereby, if such proceeding was pending in the Family Court, such court would be required, by section 262 of the Family Court Act, to appoint counsel, such as the matter here in which the defendant sought to hold the plaintiff in contempt for wilful violation of the 2013 [child-support] order and sought his incarceration (see Judiciary Law § 35[8]; Family Ct Act § 262). The standard for effective assistance of counsel in such cases is whether, viewed in its totality, there was meaningful representation … . Here, the plaintiff’s attorney failed to present any medical evidence, whether in the form of admissible medical records or testimony of medical witnesses, to support the plaintiff’s defense that his failure to pay child support in accordance with the 2013 order was not wilful, but rather due to his medical condition which rendered him unable to work. Winter v Winter, 2021 NY Slip Op 03865, Second Dept 6-16-21

June 16, 2021/by Bruce Freeman

Contempt, Family Law

THE CONTEMPT APPLICATIONS IN THIS NEGLECT/CUSTODY PROCEEDING WERE JURISDICTIONALLY DEFECTIVE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the contempt charges in this neglect/custody proceeding were jurisdictionally defective:

We… conclude that the court erred in granting in part plaintiff’s contempt applications because they were jurisdictionally defective under Judiciary Law § 756. Section 756 provides that a contempt “application shall contain on its face a notice that the purpose of the hearing is to punish the accused for a contempt of court, and that such punishment may consist of fine or imprisonment, or both, according to law together with the following legend . . . : WARNING: YOUR FAILURE TO APPEAR IN COURT MAY RESULT IN YOUR IMMEDIATE ARREST AND IMPRISONMENT FOR CONTEMPT OF COURT.” It is well settled that the failure to include the notice or the warning language of Judiciary Law § 756 constitutes a jurisdictional defect, requiring the court to deny the application … .

Here, it is undisputed that plaintiff’s initial and amended contempt applications did not include, verbatim, the required warning language of Judiciary Law § 756. Importantly, plaintiff’s contempt applications omitted the language warning defendant that his “failure to appear in court may result in [his] immediate . . . imprisonment for contempt of court” (id.). Thus, because plaintiff’s contempt applications failed to include the required warning language, they did not strictly comply with Judiciary Law § 756, rendering them jurisdictionally defective … . Rennert v Rennert, 2021 NY Slip Op 01630, Fourth Dept 3-19-21

March 19, 2021/by Bruce Freeman

Civil Procedure, Contempt, Family Law

THE CONTEMPT FINDING AND THE $535,000 FINE WERE BASED ON AN ORDER WHICH SUPREME COURT DID NOT HAVE THE JURISDICTION TO ISSUE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the contempt finding and the imposition of a $535,000 fine could not be enforced because it was based on an order which Supreme Court did not have jurisdiction to issue:

… [A]fter the entry of the order on appeal, this Court modified the prior order upon an appeal by defendant … . Defendant had transferred title to the … property to her children while reserving a life interest for herself, and she transferred title to … property to an LLC of which she was the sole owner, but later gifted that LLC to her children … . We stated in our decision that Supreme Court … equitably distributed the … properties “by directing defendant to prepare and execute deeds listing plaintiff as a one-half owner of those properties” … . We held that “[t]he court, however, lacked jurisdiction to do so inasmuch as the children and the LLC were not named as parties to this action” … . We therefore conclude in this appeal that the directive in the prior order requiring defendant to sign those deeds cannot be a basis for a finding of contempt, and we therefore modify the order by vacating the finding of contempt and the imposition of a fine upon that contempt. Jolley v Lando, 2021 NY Slip Op 00679, Fourth Dept 2-5-21

February 5, 2021/by Bruce Freeman

Contempt, Criminal Law

DEFENDANT’S CONTEMPT CONVICTION FOR VIOLATING AN ORDER OF PROTECTION STANDS, DESPITE THE FACT THAT THE ORDER OF PROTECTION WAS BASED ON AN OFFENSE SINCE FOUND UNCONSTITUTIONAL (FIRST DEPT).

The First Department determined the order of protection based on a conviction for an offense which has been found unconstitutional was voidable, not void, and therefore remained in effect.

Defendant was properly convicted of first-degree criminal contempt under Penal Law § 215.51(b)(v) for violating an order of protection that had been issued upon his conviction of second-degree aggravated harassment under former Penal Law § 240.30(1)(a). The contempt conviction was valid even though the Court of Appeals declared that the aggravated harassment provision underlying the order of protection was unconstitutional in People v Golb (23 NY3d 455 [2014] … . Golb was decided after the order of protection was issued against defendant, but before he violated it. …

The Golb decision did not render defendant’s order of protection void on its face, but merely voidable.

Defendant’s underlying conviction was final before Golb was decided. The order of protection was indisputably valid at the time of its issuance. After Golb, there are no reported cases holding that convictions under former Penal Law § 240.30 (1)(a) are automatically vacated. Instead, where there was vacatur of a conviction or order of protection, it was in response to a request for relief either on appeal or in a posttrial motion … . …

Defendant did not challenge the order of protection by appealing the aggravated harassment conviction against him … . His subsequent CPL 440.10 motion to vacate the conviction and order of protection based on Golb was denied … . Defendant was therefore required to comply with the extant order and his violation constituted criminal contempt … . People v Brown, 2020 NY Slip Op 08011, First Dept 12-29-20

December 29, 2020/by Bruce Freeman

Contempt, Criminal Law

STATUTORY CRITERIA FOR CRIMINAL CONTEMPT FIRST DEGREE NOT MET; CONVICTION REDUCED TO CRIMINAL CONTEMPT SECOND DEGREE (SECOND DEPT).

The Second Department determined the statutory criteria for criminal contempt first degree were not met and reduced the conviction to criminal contempt second degree:

As the People concede, the evidence was legally insufficient to establish the defendant’s guilt of criminal contempt in the first degree in violation of Penal Law § 215.51(c). An essential element of that crime is that the defendant has violated an order of protection issued pursuant to “sections two hundred forty and two hundred fifty-two of the domestic relations law, articles four, five, six and eight of the family court act and section 530.12 of the criminal procedure law, or an order of protection issued by a court of competent jurisdiction in another state, territorial or tribal jurisdiction, which requires the respondent or defendant to stay away from the person or persons on whose behalf the order was issued” … . Here, the defendant was accused of violating an order of protection issued pursuant to Criminal Procedure Law § 530.13. Criminal Procedure Law § 530.13, which provides protection to victims of crimes other than family offenses, is not one of the authorities enumerated in Penal Law § 215.51(c). Accordingly, the defendant’s conviction of criminal contempt in the first degree was legally insufficient because the People could not prove an essential element of the offense … . However, because the evidence was legally sufficient to support a conviction of the lesser included offense of criminal contempt in the second degree (see Penal Law § 215.50[3]), the defendant’s conviction is reduced accordingly … . People v Smith, 2020 NY Slip Op 07229, Second Dept 12-2-20

December 2, 2020/by Bruce Freeman

Appeals, Contempt, Criminal Law, Evidence

ALTHOUGH THE DEFENDANT VIOLATED THE ORDER OF PROTECTION BY GOING INSIDE THE PROTECTED PERSON’S HOUSE, THERE WAS INSUFFICIENT EVIDENCE OF ANY CONTACT WITH THE PROTECTED PERSON; CRIMINAL CONTEMPT FIRST CONVICTION REDUCED TO CRIMINAL CONTEMPT SECOND (FOURTH DEPT).

The Fourth Department, reducing the criminal contempt first conviction to criminal contempt second, determined the evidence was legally insufficient. The defendant violated the order of protection by going inside the protected person’s house but there was insufficient evidence of any contact between the defendant and the protected person:

… [T]he People adduced legally insufficient evidence that defendant intentionally violated “that part” of the protective order that required him to “stay away from the [protected] person,” as required for a conviction for criminal contempt in the first degree under Penal Law § 215.51 (c) … . Rather, the evidence proves only that defendant committed the lesser included offense of criminal contempt in the second degree under section 215.50 (3) by going to the protected person’s house, and we therefore modify the judgment accordingly … . People v Crittenden, 2020 NY Slip Op 06901, Fourth Dept 11-20-20

November 20, 2020/by Bruce Freeman