Pizzirusso v. Grossman

286 A.D.2d 428, 730 N.Y.S.2d 235, 2001 N.Y. App. Div. LEXIS 8086

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 20, 2001
• Status: Published

Opinion

In an action to recover damages for personal injuries, Sandra Grossman, a nonparty witness, appeals from (1) a decision of the Supreme Court, Nassau County (Galasso, J.), dated January 26, 2001, and (2) an order of the same court, entered January 29, 2001, which, inter alia, granted the plaintiffs application to hold her in civil contempt.

Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v Green Constr. Corp., 100 AD2d 509); and it is farther,

Ordered that the order entered January 29, 2001, is reversed, on the law, and the application to hold the appellant in civil contempt is denied; and it is further,

Ordered that the appellant is awarded one bill of costs.

The plaintiff moved to hold the appellant, a nonparty witness, in civil contempt based, inter alia, on her failure to produce subpoenaed documents at a court-ordered deposition. The plaintiffs notice of motion, however, did not warn the appellant, as required by Judiciary Law § 756, that her failure to appear in court may result in her immediate arrest and imprisonment. Because the appellant did not waive the issue (cf., Matter of Rappaport, 58 NY2d 725, 726), the Supreme Court was therefore without jurisdiction to punish the appellant for civil contempt (see, Cappello v Cappello, 274 AD2d 538, 539; Matter of Dawn P., 180 AD2d 800; Murrin v Murrin, 93 AD2d 858). Goldstein, J. P., Friedmann, McGinity and Adams, JJ., concur.