Hampton v. Annal Management Co. , 646 N.Y.S.2d 227 ( 1996 )

OPINION OF THE COURT

Per Curiam.

Judgment entered March 17, 1995 reversed, without costs, and the motion to punish appellant for civil contempt is denied.

Appeal from order dated November 9, 1994 dismissed, without costs, as superseded by the judgment.

Civil Court erred in granting the motion to punish appellant Annal Management Co., Ltd. (Annal) for civil disobedience of a judicial subpoena (see, CPLR 2308 [a]) and awarding consequential damages where the court lacked in personam jurisdiction. Annal, a nonparty previously dismissed from the action, was not named in the subpoena or in the order to show cause bringing on the contempt motion; the party named was Noel Coreano, Annal’s employee. Further, where the contemnor is not a party to the underlying action, the order to show cause must be personally served upon the accused (Long Is. Trust Co. v Rosenberg, 82 AD2d 591; Judiciary Law § 761). Here, the order to show cause required personal service of the contempt papers pursuant to CPLR 308. The mail service directed to Coreano was therefore insufficient to confer jurisdiction over Annal.

The contempt judgment must also fall on the ground that the requisite witness fee was not tendered when the subpoena was served or within a reasonable time thereafter (Bobrowsky v Bozzuti, 98 AD2d 700; CPLR 2303). Civil Court’s "waiver” of the witness fee, under the guise of "substantial justice”, was without basis.

Parness, J. P., McCooe and Freedman, JJ., concur.