IN RE: Thomas J. KELLY

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

IN RE: Thomas J. KELLY, appellant, v. Eileen KELLY, respondent.

Decided: November 28, 2006

ANITA R. FLORIO, J.P., THOMAS A. ADAMS, GABRIEL M. KRAUSMAN, and REINALDO E. RIVERA, JJ. Alfred Reinharz, Baldwin, N.Y., for appellant. Eileen T. Stapleton, Levittown, N.Y., Law Guardian for the children.

In related child custody proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Nassau County (Eisman, J.), dated October 27, 2005, which found him guilty of criminal contempt.

ORDERED that the appeal is dismissed, without costs or disbursements.

Where, as here, the purported contempt was committed within the immediate view and presence of the court and was punished summarily (see Judiciary Law § 750, 752;  22 NYCRR 701.2), review must be had under CPLR article 78 and not by way of direct appeal (see Judiciary Law § 755;  Matter of Shockome v. Shockome, 30 A.D.3d 529, 817 N.Y.S.2d 115;  Matter of Ellman, 117 A.D.2d 803, 499 N.Y.S.2d 431;  People v. Longo, 30 A.D.2d 828, 293 N.Y.S.2d 704;  People v. Epps, 21 A.D.2d 650, 249 N.Y.S.2d 639, cert. denied 379 U.S. 940, 85 S.Ct. 347, 13 L.Ed.2d 350).   Moreover, because this matter involves a Family Court Judge, this court is without original jurisdiction to entertain it as a CPLR article 78 proceeding (see Matter of Nolan v. Lungen, 61 N.Y.2d 788, 473 N.Y.S.2d 388, 461 N.E.2d 874;  Matter of Shockome v. Shockome, supra;   Matter of O'Connell v. Taddeo, 174 Misc.2d 110, 112, 662 N.Y.S.2d 722;  CPLR 506[b][1] ).

Accordingly, the appeal must be dismissed.

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