Arnold v Saluvro

[*1] Arnold v Saluvro 2004 NY Slip Op 50385(U) Decided on May 10, 2004 District Court Of Nassau County, First District Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 10, 2004
District Court Of Nassau County, First District

EDWARD ARNOLD, Plaintiff,

against

MARIO SALUVRO, Defendant.



INDEX NO. 15847/03



Russo, Darnell & Lodato, LLP, attorneys for Plaintiff; Mario Saluvro,

defendant.

Scott Fairgrieve, J.

The plaintiff's motion for an order punishing the defendant, Mario Saluvro, for contempt of court is denied pursuant to Judiciary Law §756.

On August 7, 2003, judgment was entered in favor of the plaintiff and against the defendant upon the defendant's default. Pursuant to the collection of said judgment, the plaintiff caused an information subpoena duces tecum to be personally served upon the defendant, and filed an affidavit of service with the Court.

Judiciary Law §756 provides, in pertinent part, that: An application to punish for contempt ... 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, ... with the following legend printed or typewritten in a size equal to at least eight-point bold type. [Emphasis added]WARNING:YOUR FAILURE TO APPEAR IN COURT MAY RESULT IN YOUR IMMEDIATE ARREST AND IMPRISONMENT FOR CONTEMPT OF COURT.

As stated in Bank Leumi Trust Company of New York v. Rose Taylor-Cishahayo, 147 Misc 2d 685, 556 NYS2d 211 [1990], the statute imposes two distinct requirements. First, it must contain the prescribed notice stating the purpose of the hearing and that the punishment may consist of a fine, imprisonment, or both. Secondly, the above-stated warning must be printed or typewritten in at least eight-point bold type and must appear on the face of the motion. "Consequently an application which does not contain the prescribed notice and warning on the face of the application is jurisdictionally deficient" (see, Barreca v. Barreca, 77 AD2d 793, 430 NYS2d 739 [4th Dept 1980]; Stevens Plumbing Supply Co. v. Bi-County Plumbing & Heating Co., 94 Misc 2d 456, 404 NYS2d [*2]964 [1978]; People ex rel Stage v. Sherwood, 94 Misc 2d 372, 409 NYS2d 818 [1978]; Bobko v. Rohrberg, 85 AD2d 675, 445 NYS2d 518 [2d Dept 1981]).

In the instant case, the plaintiff's counsel utilizes a typed notice of motion form for its contempt application. Although the warning is typewritten in capital letters it is not at least eight-point bold type in size. While this may have been an oversight by counsel, clearly the papers do not comply with the statutory requirements.

As further stated in People ex rel. Clarke v. Truesdell, 79 NYS2d 413 "It is a firmly entrenched principle that the power of the court to punish for contempt cannot be extended in the least degree beyond the limits which have been imposed by statute."

Moreover, courts insist on strict and literal construction of contempt statutes and accord to the accused all rights, even the most technical rights, which it may afford (In re Berkon, 180 Misc 659, 43 NYS2d 334, rev'd. on other grounds, 268 AD 825, 49 NYS2d 551, aff'd 294 NY 828], 62 NE2d 388 [1945].

Contempt is the harshest remedy available in a civil action. It can subject the contemner to a fine or imprisonment, or both. Therefore, the statutory notice and warning requirements must be strictly enforced to insure that the defendant is made aware of the severe penalties for their failure to comply with the subpoena. The subject motion, because it is not at least eight-point bold type, deviates from the requirements of the statute.

Accordingly, the plaintiff's motion is denied without prejudice.

So ordered:

DISTRICT COURT JUDGE

Dated:May 14, 2004

CC:Russo, Darnell & Lodato, LLP

Mario Saluvro

SF/mp

Decision Date: May 10, 2004