Kelly v. Kelly

Nov 28, 2006
Versions:34 A.D.3d 809
826 N.Y.S.2d 117

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 AD3d 529 [2006]; Matter of Ellman, 117 AD2d 803 [1986]; People v Longo, 30 AD2d 828 [1968]; People v Epps, 21 AD2d 650 [1964], cert denied 379 US 940 [1964]). 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 NY2d 788 [1984]; Matter of Shockome v Shockome, supra; Matter of O‘Connell v Taddeo, 174 Misc 2d 110, 112 [1997]; CPLR 506 [b] [1]).

Accordingly, the appeal must be dismissed. Florio, J.P., Adams, Krausman and Rivera, JJ., concur.