Xand Corp. v. Reliable Systems Alternatives Corp.

35 A.D.3d 849, 827 N.Y.S.2d 269

Opinion

Pursuant to Judiciary Law § 756, a contempt application must be in writing, must be made upon at least 10 days’ notice, and must contain on its face the statutory warning that “failure to appear in court may result in . . . immediate arrest and imprisonment for contempt of court” (Judiciary Law § 756). Since the defendant’s oral application failed to comply with any of these procedural safeguards, the Supreme Court erred when it punished the plaintiff for contempt for failing to comply with its prior order (see Matter of Angel Marie L., 8 AD3d 669 [2004]; Matter of P&N Tiffany Props. v Williams, 302 AD2d 466 [2003]; Cappello v Cappello, 274 AD2d 538 [2000]).

Furthermore, under the circumstances of this case, that branch of the defendant’s oral application which was to strike the complaint based upon the plaintiffs failure to comply with court-ordered discovery should have been denied in the absence of notice and an opportunity to be heard (see Postel v New York Univ. Hosp., 262 AD2d 40, 42 [1999]). Miller, J.P., Krausman, Spolzino, Fisher and Dillon, JJ., concur.