[*1]
| North Fork Bank v Reed |
| 2007 NY Slip Op 50735(U) [15 Misc 3d 1117(A)] |
| Decided on April 9, 2007 |
| Nassau Dist Ct |
| Engel, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Nassau Dist Ct
North Fork Bank, Plaintiff,
against
Thomas Reed and Nicole Alves, Defendants.
|
19346/05
Attorneys for Plaintiff: Kirschenbaum & Phillips, P.C.
Defendants pro se: Thomas Reed and Nicole Alves
Andrew M. Engel, J.
A judgment was previously entered in the Plaintiff's favor, against the Defendants, in the amount of $6,116.72, on October 5, 2005.
On August 30, 2006, a Restraining Notice and Subpoena were served upon the Defendant, Thomas Reed, pursuant to CPLR § 308(2). The Defendant did not appear for the deposition as noticed. The Plaintiff now moves for an order punishing the Defendant for contempt in failing to comply with the subpoena. The Defendant has not appeared to oppose this motion.
The court's power to punish for contempt is found in Judiciary Law § 756, which provides, in pertinent part:
An application to punish for contempt punishable civilly ... 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 printed or type written in a size equal to at least eight point bold type:
WARNING:
YOUR FAILURE TO APPEAR
IN COURT MAY RESULT IN
YOUR IMMEDIATE ARREST
AND IMPRISONMENT FOR
CONTEMPT OF COURT.
Having been recognized to be a drastic remedy, Pinto v. Pinto, 120 AD2d 337, 501 NYS2d 835 (1st Dept. 1986); Usina Costa Pinto SA v. Sanco Sav Company Limited, 174 [*2]AD2d 487, 571 NYS2d 264 (1st Dept. 1991), involving the possibility of imprisonment, the statute must be strictly construed. Stevens Plumbing Supply Co., Inc. v. Bi-County Plumbing & Heating Co., Inc., 94 Misc 2d 456, 404 NYS2d 964 (Dist. Ct. Nassau Co. 1978) As noted in People ex rel. Clarke v. Truesdell, 79 NYS2d 413 (S.C. Orange Co. 1948), "It is a firmly entrenched principle that the power of the court to punish for contempt cannot be extended in the least degree beyond the limits which have been imposed by statute." Before a finding of contempt will be made "courts insist on strict and literal construction of contempt statutes and accord to the accused all rights, even the most technical rights, which it may afford (In re Berkon, 180 Misc. 659, 43 NYS2d 334, rev'd. on other grounds, 268 A.D. 825, 49 NYS2d 551, aff'd 294 NY 824], 62 NE2d 388 [1945]." Arnold v. Saluvro, 3 Misc 3d 1104(A), 787 NYS2d 675 (Dist. Ct. Nassau Co. 2004). An application to have one found in contempt which does not strictly comply with the statutory requirements is jurisdictionally defective. Pizzirusso v. Grossman, 286 AD2d 428, 730 NYS2d 235 (2nd Dept. 2001); Murrin v. Murrin, 93 AD2d 858, 461 NYS2d 360 (2nd Dept. 1983); Bobko v. Rohrberg, 85 AD2d 675, 445 NYS2d 518 (2nd Dept.1981)
Bank Leumi Trust Company of New York v. Taylor-Cishahayo, 147 Misc 2d 685, 556 NYS2d 211 (Civ. Ct. Queens Co. 1990), cited with approval in Matter of Dawn P., 180 AD2d 800, 580 NYS2d 436 (2nd Dept. 1992) and Lada v. Lada, 220 AD2d 665, 632 NYS2d 641 (2nd Dept. 1995), is identical to the matter sub judice and is instructive in determining the Plaintiff's present application. In Bank Leume, supra ., as in the present application, the "notice" mandated by Judiciary Law § 756 is found to the right of the caption, above the index number, in the same typeface and size as the caption itself; and, the "warning" is found at the lower left of the page, under the date, all in capital letters, but not in bold. In addition, the face page of the application bears an ink stamp of the "warning", at the lower right corner, which is obscured by other type written portions on the page and "the print is uneven, as in the case of most rubber stamped words," Bank Leume, id., with portions of some of the mandated words missing and/or illegible.
The court in Bank Leume, id. found that the identical face page as herein did not satisfy the requirements of Judiciary Law § 576, mandating the denial of the Plaintiff's application for a finding of contempt. Specifically, the court found the positioning of the type written "notice" and "warning" "detracts from the seriousness of the remedy sought and lulls the defendant into believing that this is a routine motion instead of one that could result in fine or imprisonment ... and defeats the intent of the statute." The court also objected to the fact that the "warning" was "not at least eight point bold in size", which defect was not cured by the ink stamp which was not "printed or type written", as required by the statute.
It is the opinion of this court that the latter two (2) defects on the face page of the Plaintiff's present application preclude the granting of the Plaintiff's motion. There is no question that the "warning" herein is not in bold typeface as mandated by the statute. Similarly, the ink stamp "warning" is defective as it is indeed neither printed nor type written, and is missing some of the statutorily mandated language.
[*3]
These may seem like trivial defects to the Plaintiff; but, contempt proceedings are stricti juris, Goldie v. Goldie, 77 A.D. 12, 79 N.Y.S. 268 (4th Dept. 1902); Stagnar v. Stagnar, 98 AD2d 983, 470 NYS2d 224 (4th Dept.1983), according the Defendant all of his rights, even of the most technical nature. Bank Leumi Trust Company of New York v. Taylor-Cishahayo, supra .; Arnold v. Saluvro, supra .
Accordingly, the Plaintiff's motion is denied.
All other matters not decided herein are hereby denied
This constitutes the decision and order of this court.
Dated: Hempstead, New York
April 9, 2007
___________________________
ANDREW M. ENGEL
J.D.C.