In re the Estate of Rappaport

Appellate Division of the Supreme Court of New York

In re the Estate of Rappaport

85 A.D.2d 697, 445 N.Y.S.2d 487, 1981 N.Y. App. Div. LEXIS 16523

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 28, 1981

StatusPublished

Cited by2 cases

This text of 85 A.D.2d 697 (In re the Estate of Rappaport) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Rappaport, 85 A.D.2d 697, 445 N.Y.S.2d 487, 1981 N.Y. App. Div. LEXIS 16523 (N.Y. Ct. App. 1981).

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Opinion

In a proceeding to discover property belonging to the decedent’s estate, in which petitioner sought, pursuant to article 19 of the Judiciary Law and SCPA 606 and 607, to hold Alfred D. Rappaport in contempt of court for his willful refusal or neglect to obey a prior court order, Alfred D. Rappaport appeals from an order of the Surrogate’s Court, Nassau County (Radigan, S.), dated June 4, 1981, which adjudicated him guilty of contempt and ordered that, unless he purged himself of the contempt within 15 days of service of the order upon him, a warrant of commitment would issue directing his imprisonment. Order reversed, on the law, without costs or disbursements, and contempt petition dismissed. We are constrained to dismiss the petition in this proceeding because neither of the two orders to show cause involved contained the notice and warning “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” (see Judiciary Law, §§756, 757). Since this defect is jurisdictional in nature, we are left with no other alternative (see Matter of Ellis v Ellis, 85 AD2d 602; Barreca v Barreca, 77 AD2d 793). Lazer, J. P., Rabin, Gulotta and Cohalan, JJ., concur.

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In a proceeding to discover property belonging to the decedent’s estate, in which petitioner sought, pursuant to article 19 of the Judiciary Law and SCPA 606 and 607, to hold Alfred D. Rappaport in contempt of court for his willful refusal or neglect to obey a prior court order, Alfred D. Rappaport appeals from an order of the Surrogate’s Court, Nassau County (Radigan, S.), dated June 4, 1981, which adjudicated him guilty of contempt and ordered that, unless he purged himself of the contempt within 15 days of service of the order upon him, a warrant of commitment would issue directing his imprisonment. Order reversed, on the law, without costs or disbursements, and contempt petition dismissed. We are constrained to dismiss the petition in this proceeding because neither of the two orders to show cause involved contained the notice and warning “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” (see Judiciary Law, §§756, 757). Since this defect is jurisdictional in nature, we are left with no other alternative (see Matter of Ellis v Ellis, 85 AD2d 602; Barreca v Barreca, 77 AD2d 793). Lazer, J. P., Rabin, Gulotta and Cohalan, JJ., concur.

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Bluebook (online)

85 A.D.2d 697, 445 N.Y.S.2d 487, 1981 N.Y. App. Div. LEXIS 16523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-rappaport-nyappdiv-1981.

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