Opinion
801 CA 21-00356
11-10-2022
S.P., Plaintiff-Appellant, v. M.P., Defendant-Respondent.
S.P., PLAINTIFF-APPELLANT PRO SE.
S.P., PLAINTIFF-APPELLANT PRO SE.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the contempt adjudications are vacated.
Memorandum: In this post-divorce child custody action, plaintiff mother appeals pro se from an order that fined her $1,000 upon findings effectively adjudicating her in criminal contempt pursuant to Judiciary Law § 750 (A) (3). We now reverse and vacate the contempt adjudications.
Preliminarily, we conclude that the mother's challenge to the summary contempt adjudications is properly raised via direct appeal from the order under the circumstances of this case. Although a direct appeal from an order punishing a person summarily for contempt committed in the immediate view and presence of the court ordinarily does not lie and a challenge must generally be brought pursuant to CPLR article 78 to allow for development of the record (see Judiciary Law §§ 752, 755 ; see e.g. Matter of Cahn v. Vario , 32 A.D.2d 1035, 1035, 304 N.Y.S.2d 235 [2d Dept. 1969] ), an appeal from such an order is appropriately entertained where, as here, there exists an adequate record for appellate review (see People v. Sanders , 58 A.D.2d 525, 525, 395 N.Y.S.2d 190 [1st Dept. 1977] ; People v. Clinton , 42 A.D.2d 815, 815, 346 N.Y.S.2d 345 [3d Dept. 1973] ; Matter of Dillon v. Comello , 34 A.D.2d 1097, 1098, 312 N.Y.S.2d 568 [4th Dept. 1970] ; People v. Zweig , 32 A.D.2d 569, 570, 300 N.Y.S.2d 651 [2d Dept. 1969] ). With respect to the merits, "[b]ecause contempt is a drastic remedy, ... strict adherence to procedural requirements is mandated" ( Rennert v. Rennert , 192 A.D.3d 1513, 1515, 145 N.Y.S.3d 221 [4th Dept.2021] [internal quotation marks omitted]). Here, we conclude that the court committed reversible error by failing to afford the mother the requisite "opportunity, after being ‘advised that [she] was in peril of being adjudged in contempt, to offer any reason in law or fact why that judgment should not be pronounced’ " ( Matter of Scott v. Hughes , 106 A.D.2d 355, 356, 483 N.Y.S.2d 18 [1st Dept. 1984], quoting Matter of Katz v. Murtagh , 28 N.Y.2d 234, 238, 321 N.Y.S.2d 104, 269 N.E.2d 816 [1971] ; see Matter of Rodriguez v. Feinberg , 40 N.Y.2d 994, 995, 391 N.Y.S.2d 69, 359 N.E.2d 665 [1976] ).