Department of Housing Preservation & Development v. Chaney

Appellate Terms of the Supreme Court of New York

Department of Housing Preservation & Development v. Chaney

137 Misc. 2d 1079, 526 N.Y.S.2d 51, 1988 N.Y. Misc. LEXIS 138

Appellate Terms of the Supreme Court of New York·Decided January 8, 1988·Published·Cited by 1 cases

Opinion

OPINION OF THE COURT

Per Curiam.

Order entered July 16, 1986 reversed, with $10 costs, the motion by respondent John Chaney to vacate the order of contempt entered on default on January 23, 1985 is granted, [1080] and matter remanded to the court below for further proceedings.

Section 756 of the Judiciary Law provides, inter alia, that "unless otherwise ordered by the court”, the moving papers on an application to punish for contempt must be served no less than 10 days before the time the application is noticed to be heard. The court (Levister, J.) authorized short service in this matter, although it is not clear from the record why expedition was deemed necessary in light of the fact that the order respondent purportedly violated had been rendered more than one year earlier. In any event, respondent was served (under CPLR 308 [4]) only two days prior to the contempt hearing, and was unable to appear because he was outside the jurisdiction at the time. An application for an adjournment was denied. In this posture, and given the substantial penalties assessed against respondent, the order of contempt entered on default should be vacated so that respondent will have a meaningful opportunity to defend the proceeding.

Parness, J. P., Sandifer and Ostrau, JJ., concur.

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OPINION OF THE COURT

Per Curiam.

Order entered July 16, 1986 reversed, with $10 costs, the motion by respondent John Chaney to vacate the order of contempt entered on default on January 23, 1985 is granted, [1080] and matter remanded to the court below for further proceedings.

Section 756 of the Judiciary Law provides, inter alia, that "unless otherwise ordered by the court”, the moving papers on an application to punish for contempt must be served no less than 10 days before the time the application is noticed to be heard. The court (Levister, J.) authorized short service in this matter, although it is not clear from the record why expedition was deemed necessary in light of the fact that the order respondent purportedly violated had been rendered more than one year earlier. In any event, respondent was served (under CPLR 308 [4]) only two days prior to the contempt hearing, and was unable to appear because he was outside the jurisdiction at the time. An application for an adjournment was denied. In this posture, and given the substantial penalties assessed against respondent, the order of contempt entered on default should be vacated so that respondent will have a meaningful opportunity to defend the proceeding.

Parness, J. P., Sandifer and Ostrau, JJ., concur.

Department of Housing Preservation & Development v. Chaney, 137 Misc. 2d 1079, 526 N.Y.S.2d 51, 1988 N.Y. Misc. LEXIS 138 (N.Y. Ct. App. 1988).

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Opinion

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