Supreme Court, Appellate Division, Second Department, New York.
Linda KIPERMAN, et al., Respondents,v.Milton STEINBERG, etc., Appellant,Country Corners, etc., et al., Defendants.
Dec. 23, 1996.
Surrogate's Court, Nassau County, Radigan, S., confirmed referee's report and appointed receiver, in partnership dissolution proceeding, declined to find party in civil contempt, and ordered party to pay attorney fees. Appeal was taken. The Supreme Court, Appellate Division, held that attorney fees could not be imposed without finding of contempt.
Affirmed in part, reversed in part.
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Trial court could not decline to hold party in civil contempt and impose attorney fees; finding of contempt was prerequisite for imposing attorney fees. **176 Jonathan C. Scott, Melville, for appellant.
Kirschenbaum & Kirschenbaum, P.C., Garden City, (Samuel Kirschenbaum and Jayne B. Schumer, of counsel), for respondents.
Stanley R. Waxman, P.C., Mineola, (Gerard K. Ryan, Jr., of counsel), for Joseph J. Kunzeman, receiver of defendants Country Corners, a co-partnership, and Limas Builders, Inc., amicus curiae.
Before MANGANO, P.J., and ALTMAN, GOLDSTEIN and McGINITY, JJ.
MEMORANDUM BY THE COURT.
*518 In an action *519 for dissolution of partnerships, an accounting, and the appointment of a receiver, the defendant Milton Steinberg, individually and as a partner of Country Corners and as a partner of Limas Builders appeals, (1) as limited by his brief, from stated portions of an order of the Surrogate's Court, Nassau County (Radigan, S.), dated December 8, 1995, which, inter alia, upon granting the plaintiffs' motion, among other things, to confirm a referee's report dated October 11, 1995, appointed a temporary receiver; and (2) from so much of an order of the same court dated March 14, 1996, as granted that branch of the plaintiffs' motion which was for attorneys' fees. Presiding Justice Mangano has been substituted for the late Justice Hart (see, 22 NYCRR 670.1[c] ).
ORDERED that the order dated December 8, 1995, is affirmed insofar as appealed from, without costs or disbursements; and it is further,
ORDERED that the order dated March 14, 1996, is reversed insofar as appealed **177 from, on the law, without costs or disbursements, and that branch of the plaintiffs' motion which was for attorneys' fees is denied.
The Surrogate's Court did not improvidently exercise its discretion in appointing a temporary receiver (see, Freedman v. Freedman, 211 A.D.2d 580, 621 N.Y.S.2d 610; King v. King, 183 A.D.2d 479, 583 N.Y.S.2d 406; Kardanis v. Velis, 90 A.D.2d 727, 455 N.Y.S.2d 612). However, the court erred in granting attorneys' fees to the plaintiffs. The plaintiffs moved, inter alia, to punish the appellant for civil contempt and for attorneys' fees. Although the court found that the appellant had not committed civil contempt, it awarded attorneys' fees to the plaintiffs. Since, on a motion to punish for civil contempt, a finding of civil contempt is the prerequisite for imposing attorneys' fees (see, Judiciary Law § 773; Glennon v. Mayo, 174 A.D.2d 600, 571 N.Y.S.2d 307; Field v. Dadon, 117 Misc.2d 525, 458 N.Y.S.2d 139), that branch of the plaintiffs' motion which was for attorneys' fees should have been denied.
The appellant's remaining contentions are without merit.
651 N.Y.S.2d 176, 234 A.D.2d 518
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