IN RE: MICHAEL D. SCHMITT (2014)

MEMORANDUM AND ORDER

Proceeding pursuant to CPLR article 78 (initiated in the Appellate Division of the Supreme Court in the Fourth Judicial Department pursuant to CPLR 506 [b][1] ) to annul and set aside the determination of respondent finding petitioner in contempt.

It is hereby ORDERED that the determination is unanimously annulled on the law without costs and the petition is granted.

Memorandum:  Petitioner commenced this original CPLR article 78 proceeding pursuant to CPLR 506(b)(1) seeking to annul the determination finding petitioner in contempt of court and imposing a fine of $500.   The conduct resulting in the order of contempt occurred while petitioner, an attorney appearing before respondent as defense counsel in a criminal case, cross-examined a prosecution witness regarding his criminal history.

Initially, we note that the order recites that it was a commitment for “[c]ivil [c]ontempt,” but respondent contends that this was actually a summary criminal contempt adjudication pursuant to Judiciary Law § 750(A)(3) based on petitioner's willful disobedience of a court ruling.   We agree with respondent that this was an order of criminal contempt inasmuch as “the aim ․ [was] solely to punish [petitioner] for disobeying a court order” (Matter of Department of Envtl.   Protection of City of N.Y. v Department of Envtl.   Conservation of State of N.Y., 70 N.Y.2d 233, 239;  see Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 582–583, order amended 60 N.Y.2d 652).   We therefore disregard the mistaken reference to civil contempt in the order, as well as the reference to Judiciary Law § 774, which has no relevance to the finding of contempt inasmuch as respondent did not impose a period of imprisonment (see generally CPLR 2001, 5019[a] ).

Frances E. Cafarell

Clerk of the Court