BODY GLOVE IP HOLDINGS LP v. JP (2023)

Supreme Court, Appellate Division, First Department, New York.

BODY GLOVE IP HOLDINGS LP, Plaintiff–Appellant, v. ON FIVE CORPORATION, Defendant. JP Morgan Chase Bank, N.A., Nonparty Respondent.

526 Decided: June 22, 2023

Renwick, P.J., Kennedy, Scarpulla, Shulman, Higgitt, JJ.

The Law Office of Thomas M. Mullaney, New York (Thomas M. Mullaney of counsel) for appellant. Stagg Wabnik Law Group LLP, Garden City (Thomas E. Stagg of counsel), for respondent.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered November 17, 2022, which denied plaintiff's motion to hold nonparty respondent JP Morgan Chase in contempt, unanimously affirmed, with costs.

It is undisputed that the amended notice of motion did not comport with the requirements of Judiciary Law § 756 because it did not state on its face that the punishment for contempt may consist of a fine or imprisonment, or both, and omitted a word from the legend (see Matter of Devine, 126 A.D.2d 491, 495, 511 N.Y.S.2d 231 [1st Dept. 1987]). An application to punish for contempt that does not contain the requisite warnings provided in Judiciary Law § 756 must be denied as the requirements are jurisdictional (id.). Contrary to plaintiff's claim, the mere filing of a notice of appearance prior to the time required for a responsive pleading does not constitute a waiver of an objection to personal jurisdiction (see MTGLQ Invs., L.P. v. Shay, 190 A.D.3d 527, 529, 140 N.Y.S.3d 496 [1st Dept. 2021], lv denied 37 N.Y.3d 908, 2021 WL 4164320 [2021]). Here, the record reflects that nonparty respondent objected to jurisdiction at the first opportunity, in opposition to plaintiff's motion.

We have considered plaintiff's remaining arguments and find them unavailing.

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