Traynor v. Lange

178 A.D.2d 481, 576 N.Y.S.2d 821, 1991 N.Y. App. Div. LEXIS 16297

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 1991
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the respondent dated November 26, 1990, which summarily adjudged the petitioner guilty of criminal contempt and imposed a fine of $250.

Adjudged that the petition is dismissed, without costs or disbursements.

It is well settled that no review may be had of a contempt citation which has not been reduced to writing (see, Judiciary Law § 755; Matter of Lynch v Derounian, 41 AD2d 740; Matter of Cleary, 237 App Div 519). However, despite the failure of the respondent Judge to issue a written order, as required by statute, we have nevertheless examined the record and find no basis for the determination summarily holding the petitioner in contempt of court. The record does not show that the petitioner acted for any reason other than to protect the record in the best interests of his client (see, Matter of Rotwein, 291 NY 116; Matter of Singer v Groh, 99 AD2d 758; Matter of Marino v Burstein, 72 AD2d 814). We also note that the respondent failed to afford the petitioner an opportunity "to make a statement in his defense or in extenuation of his conduct” before summarily finding him in contempt, in violation of the rules of this court (see, 22 NYCRR 701.2 [c]).

The petitioner may have the citation expunged and obtain restitution of the $250 fine paid by him by making an appropriate application in the County Court (see, Matter of Cleary, supra; Matter of Solano v Martin, 55 AD2d 620). Mangano, P. J., Thompson, Bracken, Kunzeman and Sullivan, JJ., concur.