George Sassower v. John P. Finnerty

Appeal, as limited by the appellants notice of appeal and brief, from stated portions of a judgment and order (one paper) of the Supreme Court, Suffolk County (Gowan, J.), dated February 10, 1981, which (1) in action No. 2, inter alia, denied his motion for summary judgment and thereupon dismissed a writ of habeas corpus and (2) in action No. 3 granted the motion of the respondents Signorelli and Seidell pursuant to CPLR 3211 (subd [a], par 7) to dismiss appellants amended complaint in said action as against them. Judgment and order affirmed insofar as it grants the motion of the respondents in action No. 3 to dismiss appellants amended complaint in said action as against them, without costs or disbursements, and appeal held in abeyance insofar as it pertains to action No. 2 and matter remitted to the Supreme Court, Suffolk County, for further proceedings in accordance herewith. Appellant had served as executor of the estate of Eugene Paul Kelly pursuant to the terms of the decedents will. In the probate proceeding, by order dated April 28, 1977, appellant was directed to turn over his records pertaining to the estate in order that an accounting could be conducted. Thereafter, appellant was given until June 22, 1977, to comply. On said date, appellant failed to appear in court as he had been directed. The Surrogate adjudged appellant in contempt of court for failure to comply with the turnover order and sentenced him to 30 days in the county jail. On the following day, appellant was apprehended. He obtained a writ of habeas corpus and was released on bail pending the hearing. After a hearing on the writ in Supreme Court, Suffolk County, Special Term found that appellant was not present in court before the Surrogate when he was adjudged in contempt, and annulled the adjudication of contempt without prejudice to a renewal of the contempt proceeding. This court affirmed a resettled judgment of the Supreme Court, Suffolk County, entered upon that decision of Special Term, noting that a summary adjudication of contempt is only permitted if the contemnor is within the courts presence (Sassower v Signorelli, 65 A.D.2d 756). By order to show cause served personally upon appellant, further criminal contempt proceedings were commenced on behalf of the Public Administrator of Suffolk County, defendant in action No. 3 Anthony Mastroianni, based upon appellants alleged continued failure to comply with the April 28, 1977, turnover [96 A.D.2d 585 Page 586]