In this small claims action, plaintiff moves by Order to Show Cause pursuant to Article 19 of the Judiciary Law to punish defendant, Abraham Liebler a/k/a Abraham Liebler (hereinafter "Liebler") c/o Connect Tel Inc., and Isaac Honig (hereinafter "Honig") a non-party, for contempt by fine and/or imprisonment, based on non-compliance with "Subpoenas for Taking Depositions with Restraining Notices." Neither Liebler or Honig appeared on the motion nor was opposition submitted by either party.

The facts of the case are as follows: plaintiff, Wenig, Saltiel & Greene, LLP obtained a money judgment in the amount of $3,950.00, after inquest, against Abraham Liebler, the named defendant in the underlying action. Thereafter, after unsuccessfully attempting to execute on the judgment pursuant to a "Notice to Garnishee and Income Execution", against Abraham Liebler c/o Connect Tel Inc., plaintiff served "Subpoenas for Taking Depositions with Restraining Notices" on Liebler and Honig, relative to the satisfaction of judgment entered on March 14, 2007. Plaintiff avers in its moving papers that Liebler and Honig are officers and co-owners of Connect Tel Inc. Based on the failure of Liebler and Honig to comply with the subpoenas, plaintiff now moves as judgment creditor to hold defendant Liebler and non-party Honig, in contempt.

The contempt remedy has long been used as an enforcement tool regarding money judgments. The restraining notice under CPLR § 5222, which was served in conjunction with the subpoenas in the within matter is dependent on the contempt remedy for enforcement (see, Siegal, New York Practice, § 481 at 809 [4th ed.]). The issue raised in the case at bar is (1) whether the civil contempt [*2]proceeding was properly instituted by service of a Order to Show Cause to a "business address" upon the alleged contemnor who is a party to the underlying action, and (2) whether the civil contempt proceeding was properly instituted by service of a Order to Show Cause upon an alleged contemnor who is not a party to the underlying action.

Sections 751 and 761 of the Judiciary Law are the relevant notice provisions regarding service of process for civil contempt:

Commencement"An application to punish for a contempt civilly may be commenced by ...an order of such court or judge requiring the accused to show cause before it and such application shall be noticed, heard and determined in accordance with the procedure for a motion on notice in an action in such court..." Judiciary Law § 756.

Method of Service"An application to punish for contempt in a civil contempt proceeding shall be served upon the accused, unless service upon the attorney for the accused be ordered by the court or judge.

A review of the Order to Show Cause issued in this proceeding shows that service was noticed by "Certificate of Mailing, Return Receipt Requested" on defendant Liebler and non-party Honig. The Order was silent as to a service address. Since defendant Liebler is a party to the main action, notice by mail has been held to confer jurisdiction upon the court in a contempt proceeding (see, Long Island Trust Company v Rosenberg, 82 AD2d 591, 442 NYS2d 563 [1981]). However, this Court finds that service was not properly effectuated since service on defendant Liebler was made solely at his business address. Therefore, this Court lacks jurisdiction in this proceeding.

A careful analysis of the court file reveals that Liebler has both a business and residential address. The contempt proceeding was noticed at defendant's business address c/o Connect Tel, Inc., 1575 50th Street, Brooklyn, NY, 11219. By contrast, the address indicated in Liebler's small claims summons, 93 Montrose Avenue, Brooklyn NY 11236, is presumptively a residential address since jurisdiction is invoked by service at a residence or business address under the Small Claims Act (see, New York Civil Court Act Article 18). As a result, the failure of plaintiff to serve defendant Liebler with the notice of contempt at both his business and residential address fundamentally violates due process since the residential address was the basis for jurisdiction in the underlying small claims action.

As to non-party Honig, the courts have consistently drawn a distinction between the requirements for service upon parties and non-parties to an action arising out of contempt (see, Rosenberg v Rosenberg, 259 NY 338; Ferguson v Ferguson, 247 AD 24). Where the contemnor was not a party to the underlying action, the contempt proceeding has been viewed as a separate, special proceeding, independent of the underlying action, and thus, guided by procedural rules governing special proceedings (CPLR §401, et seq).

In Long Island Trust Company v Rosenberg, supra , the court rejected the plaintiff's contention that service of the contempt proceeding was properly effectuated by mail on a non-party witness who failed to comply with an information subpoena (see, CPLR 5224, [a] (3)). The court found that while Judiciary Law § 756 "may fix the times and the methods for processing contempt motions", Judiciary Law § 761 "is a process service provision for civil contempt proceedings which local court rules cannot alter." (emphasis added). As the court so succinctly stated, the reference in Judiciary Law § 761 to the "accused" reflects legislative recognition of the onerous nature of the civil contempt proceeding and the consequent need to alert the accused directly of the severity of the [*3]peril. The court concluded that the non-party witness who is not privy to that action and is about to be made a party to a proceeding which may result in fine and/or incarceration is entitled to the same level of notice required to institute any special proceeding against any new party, i.e, by service of a notice of petition in the same manner as a summons in an action (CPLR 403 [c] [d]). Simply stated, the requirement for initiating a special proceeding provides due notice of the nature of the action and ensures that the non-party is afforded due process.

As a result, this Court agrees with the prevailing view that the punitive nature of the contempt proceeding which can include fine and/or imprisonment, compels strict adherence to the service requirements regarding non-parties. Indeed, it is the finding of this Court that this is a jurisdictional prerequisite.

Based on the foregoing, it is hereby;

ORDERED that plaintiff's motion to hold defendant Liebler in contempt is denied, without prejudice to renew, upon a showing of proper service at both Liebler's business and residential addresses, and, it is further

ORDERED that plaintiff's motion is denied in its entirety as to non-party Honig.

This constitutes the Decision and Order of the Court.

Court attorney to notify both sides of this Decision and Order.

Dated: March 25, 2008

Brooklyn, New YorkKATHY J. KING

Judge of the Civil Court

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