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

Kathleen CAPPELLO, Respondent, v. Eugene CAPPELLO, Appellant.

Decided: July 31, 2000

DANIEL W. JOY, J.P., SONDRA MILLER, DANIEL F. LUCIANO and NANCY E. SMITH, JJ. Eugene Cappello, Carmel, N.Y., appellant pro se. Kitson, Kitson & Bisesto, White Plains, N.Y. (Patricia T. Bisesto of counsel), for respondent.

In an action for a divorce and ancillary relief, the defendant husband appeals, by permission, from an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated March 1, 1999, which granted the oral application of the plaintiff wife to adjudge him in contempt of court for his failure to comply with certain terms of a stipulation of settlement entered into by the parties on January 26, 1999, and directed that he be incarcerated for three months.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the plaintiff's application is denied.

The court adjudged the defendant in contempt of court in response to an oral application of the plaintiff's attorney based on the defendant's failure to comply with a provision of the parties' stipulation requiring him to pay the wife $37,500 by a date certain.   Pursuant to Judiciary Law § 756, an application to punish for contempt must be in writing, made upon at least 10 days notice, and must contain on its face the statutory warning that “failure to appear in court may result in * * * immediate arrest and imprisonment for contempt of court”.   Since none of these procedural safeguards were followed, the court was without jurisdiction to punish the defendant for contempt for failing to comply with the stipulation of settlement (see, Matter of Dawn P. [John P.-Nancy P.], 180 A.D.2d 800, 580 N.Y.S.2d 436;  Murrin v. Murrin, 93 A.D.2d 858, 461 N.Y.S.2d 360).


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