Hernandez v. Hernandez

148 A.D.2d 1011, 539 N.Y.S.2d 240, 1989 N.Y. App. Div. LEXIS 2608

Opinion

Order unanimously reversed on the law without costs and petition dismissed against respondent Monroe County Department of Social Services. Memorandum: Family Court erred in finding the Monroe County Department of Social Services in civil contempt of court. The order to show cause served upon the Department failed to give it notice that the purpose of the proceeding was to determine whether the Department should be punished for contempt (see, Judiciary Law § 757; Family Ct Act § 846; Matter of Stagnar v Stagnar, 98 AD2d 983, 984). Moreover, the court had no basis to hold the Department in contempt because the petition in support of the motion did not allege evidentiary facts showing that the Department was guilty of contempt (see, Judiciary Law § 772; Family Ct Act § 846; 2 Carmody-Wait 2d, NY Prac § 8:53, at 79) and no testimony was taken upon the return date of the motion (see, Family Ct Act § 846-a; Gallant v Kanterman, 135 AD2d 480; Siegel, NY Prac § 484, at 649). (Appeal from order of Monroe County Family Court, Affronti, J. — contempt of court.) Present — Den-man, J. P., Boomer, Pine, Lawton and Davis, JJ.