IN RE: HOWARD T.P. (Anonymous) (1997)

In a Family Court proceeding, the appeal is from an amended order of the Family Court, Richmond County (Meyer, J.), dated December 14, 1995, which, upon a prior order of the same court dated November 3, 1995, finding Howard T.P. in criminal contempt and imposing a fine in the amount of $1,000, imposed a payment schedule.

ORDERED that the amended order is reversed, on the law, without costs or disbursements, the finding of criminal contempt is vacated, and so much of the fine imposed for such contempt that has already been paid shall be returned to the appellant.

 The appellant was adjudged in contempt of court pursuant to Judiciary Law § 750 when, asserting, inter alia, his right against self-incrimination, he refused to explain to the court certain threatening remarks he allegedly made that were overheard by a clerk.   The court, inter alia, imposed a fine of $1,000.   Thereafter, the court amended the order holding the appellant in contempt by imposing a payment schedule of $100 per month.   The appellant was improperly held in contempt and so much of the fine imposed that has already been paid must be returned.

 The failure of the Family Court to personally serve the appellant with the order to show cause upon which the finding of contempt was made was a jurisdictional defect (see, Matter of Minter, 132 A.D.2d 701, 518 N.Y.S.2d 181;  Matter of Murray, 98 A.D.2d 93, 469 N.Y.S.2d 747).   In any event, the court erred in holding the appellant in contempt for exercising his Fifth Amendment right against self-incrimination (see, Matter of Solerwitz v. Signorelli, 183 A.D.2d 718, 583 N.Y.S.2d 296;  Flushing Natl. Bank v. Transamerica Ins. Co., 135 A.D.2d 486, 521 N.Y.S.2d 727;  Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118).   In light, inter alia, of the court's stated intent to consider referring the matter to the District Attorney, the appellant had “reasonable cause to apprehend danger from a direct answer” (Flushing Natl. Bank v. Transamerica Ins. Co., 135 A.D.2d at 487, 521 N.Y.S.2d 727, quoting Hoffman v. United States, supra, at 486, 71 S.Ct. at 818).

MEMORANDUM BY THE COURT.