Long Island Trust Co. v. Rosenberg

• Citation: 442 N.Y.S.2d 563,82 A.D.2d 591
• Court: New York Supreme Court Appellate Division
• Decision Date: 08 September 1981
• Parties: LONG ISLAND TRUST COMPANY, Appellant, v. Alfred ROSENBERG et al., Defendant, Semon & Braverman, Respondent.

Page 563

442 N.Y.S.2d 563

82 A.D.2d 591

LONG ISLAND TRUST COMPANY, Appellant, v. Alfred ROSENBERG et al., Defendant, Semon & Braverman, Respondent.

Supreme Court, Appellate Division,

Second Department.

Sept. 8, 1981.

Halpern, Halpern & Axelrod, P. C., Mineola (Elliot Phillips, Mineola and Susan Goldenkranz Pernick, Jericho, of counsel), for appellant.

Semon & Braverman, Jericho (Lee J. Mondshein, Jericho, of counsel), respondent pro se.

Before LAZER, J. P., and GIBBONS, COHALAN and THOMPSON, JJ.

LAZER, Justice Presiding.

The issue here is whether the current provisions of the Judiciary Law permit civil contempt proceedings to be instituted by service of a notice of motion by ordinary mail upon an alleged contemnor who is not a party to the underlying action in which the contempt is claimed to have been committed. We conclude that such service is insufficient and that the recent amendments to sections 756 and 761 of the Judiciary Law have not altered the pre-existing requirement that such civil contempt proceedings be commenced in the same fashion as subdivisions (c) and (d) of CPLR 403 require for special proceedings.

The current dispute derives from a supplementary proceeding brought by Long Island Trust Company (the bank) to enforce a default judgment it had obtained in Suffolk County against Alfred and Renee Rosenberg in May of 1977. The bank subsequently learned that Mrs. Rosenberg had died in January of 1977 and that the Rosenbergs conveyed their residence to third parties only days before her death. In an effort to acquire information concerning that conveyance, the bank, inter alia, served an information subpoena upon the law firm of Semon & Braverman which had been Mrs. Rosenberg's employer and had represented the Rosenbergs in the action which led to the judgment. The subpoena was served by certified mail, return receipt requested, as authorized by CPLR 5224 (subd. par. 3).

When Semon & Braverman failed to respond to the subpoena, the bank applied to the Nassau County Court, from which the subpoena had issued, to hold the members of the law firm in contempt of court (see CPLR 5251; 5210). The notice of motion which initiated the contempt proceeding was served on the law firm by ordinary mail.

At first, the County Court denied the bank's application. Upon renewal, however, the court found the members of Semon & Braverman in contempt for their failure to respond to the information subpoena and rejected the defense that service of the motion by ordinary mail was defective. The court held that personal jurisdiction over the firm had been obtained by service of the information subpoena and that service of the contempt motion by ordinary mail was permitted by section 756 of the Judiciary Law and the Nassau County Court rules. Nevertheless, Semon & Braverman was afforded an opportunity to purge the contempt and to raise any other defenses to the proceeding. After further motions failed to convince the court that it had erred either legally or factually, Semon & Braverman ultimately filed its response to the subpoena but the court found the argument that the firm had no knowledge of the subpoena unpersuasive and refused to vacate the contempt order.

On appeal the Appellate Term reversed the orders in issue and denied the motion to hold Semon & Braverman in contempt. The court limited its review to the question of jurisdiction and found that personal jurisdiction over the firm, as a third-party witness, had not been acquired through service of the notice of motion by ordinary mail. Leave to appeal to this court was granted by the Appellate Term.

Disposition of the current controversy depends upon interpretation of two recently amended sections of the Judiciary Law when viewed against the historical context from which they emerged. The sections now read as follows:

" § 756. Application to punish for contempt; procedure.

"An application to punish for a contempt punishable civilly may be commenced by notice of motion returnable before the court or judge authorized to punish for the offense, or by an order of such court or judge requiring the accused to show cause before it, or him, at a time and place therein specified, why the accused should not be punished for the alleged offense. The application shall be noticed, heard and determined in accordance with the procedure for a motion on notice in an action in such court, provided, however, that, except as provided in section fifty-two hundred fifty of the civil practice law and rules or unless otherwise ordered by the court, the moving papers shall be served no less than ten and no more than thirty days before the time in which the application is noticed to be heard. The application shall contain on its face a notice 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, according to law together with the following legend printed or type written in a size equal to at least eight point bold type:

"WARNING:

YOUR FAILURE TO APPEAR IN COURT MAY RESULT IN YOUR

IMMEDIATE ARREST AND IMPRISONMENT FOR CONTEMPT OF COURT."

" § 761. Notice to accused; service.

"An application to punish for contempt in a civil contempt proceeding shall be served upon the accused, unless service upon the attorney for the accused be ordered by the court or judge."

In arguing that ordinary mail service of the notice of motion sufficed to commence the contempt proceeding, the bank relies upon the language in section 756 that the application "shall be noticed, heard and determined" in accordance with the motion procedure in the hearing court. Semon & Braverman bases its argument that a higher form of notice was required upon distinctions between contemnors who are parties to the underlying main action and those who are not (see Rosenberg v. Rosenberg, 259 N.Y. 338, 182 N.E. 8). The law firm thus argues that the distinction between party and nonparty contemnors has been continued in the new statutory scheme through the retention of the requirement in section 761 that the application "be served upon the accused" unless service on the accused's attorney be ordered.

Sections 756 and 761 were revised in 1977 (L. 1977, ch. 437, §§ 2, 4) as part of a series of amendments designed to overhaul the basic procedural mechanisms governing civil contempt proceedings as a result of a three-judge Federal District Court judgment declaring the Judiciary Law provisions relative to civil contempts unconstitutional and enjoining their enforcement (Vail v. Quinlan, 406 F.Supp. 951, revd. on abstention grounds sub nom. Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376). The features of New York contempt practice found violative of due process by the District Court included the availability of a contempt remedy and warrant of imprisonment solely on the basis of a creditor's affidavit and ex parte proceeding (see Judiciary Law, former § 756), the inadequacy of the provision for notice of the consequences of failure to appear, subjection to possible imprisonment without informing the alleged contemnor of his right to counsel, and use of fine and imprisonment as penal, rather than remedial or coercive, sanctions. The subsequent remodeling of the contempt provisions unquestionably had as its primary purpose cure of the possible constitutional infirmities raised by the Federal court determination (but see Walker v. Walker, 51 A.D.2d 1029, 381 N.Y.S.2d 310 Resolution of the current controversy, however, requires more than examination of the 1977 legislative process, for the provisions in current issue have only a tangential relationship to the Vail objections. History is more illuminating.

Prior to the 1977 amendments, contempt procedures remained virtually unchanged from the time of their initial codification in the Revised Statutes (see 2 Rev.Stat., part 3, ch. 8, tit. 13) in 1828. Part 5 of the mentioned Revised Statutes title--later embodied in sections 2269 and 2271 of the Code of Civil Procedure in 1880 and subsequently in former section 757 of the Judiciary Law (L. 1909), ch. 35, as amended, repealed by L. 1977, ch. 437, § 1)--provided two methods for instituting civil contempt proceedings. The first, the now defunct warrant of attachment (compare Judiciary Law, § 756, as added by L. 1977, ch. 437, § 2, eff. July 12, 1977, with Judiciary Law, former § 757, repealed by L. 1977, ch. 437, § 1), commanded the sheriff to arrest the contemnor and bring him before the court to answer for the alleged offense. The second, and obviously less intrusive method, was by order to show cause.

Where the order to show cause was utilized, the Revised Statutes simply required the order and supporting affidavits "to be served on the party accused" (see 2 Rev.Stat., part 3, ch. 8, tit. 13, § 3). In Pitt v. Davison, 37 N.Y. 235 the meaning of the service provision was placed directly in issue when service of the order was made on the contemnor's attorney and not personally on the contemnor. The Pitt court took the view that the contempt proceeding--which had been brought against the defendant in the underlying action--was simply a proceeding taken within the context of the main action and not an independent special proceeding requiring a new jurisdictional predicate. The order to show cause in such a case was said to be the equivalent of a notice of motion and, accordingly, it could be served on the contemnor's attorney without the necessity of personal service on the contemnor himself (see CPLR 2103, subds. [c]).

Subsequent cases intimated, however, that a contempt proceeding against a party to the main action was not simply a proceeding within that action but rather was an independent special proceeding (see Erie Ry. Co. v. Ramsey, 45 N.Y. 637; Sudlow v. Knox, 7 Abb.Prac. 411). In response to these cases, section 2273 of the Code of Civil Procedure was enacted with the express purpose of confirming the Pitt...