Opinion
May 31, 1991
Appeal from the Supreme Court, Nassau County (O'Shaughnessy, J.).
Ordered that the judgment is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a hearing and new determination in accordance herewith.
At the outset, we note that the refusal or willful neglect to obey a restraining notice issued pursuant to CPLR 5222 (b) "shall be punishable as a contempt of court" (CPLR 5251). Contrary to the defendant's contention, applications to punish for civil contempt may be commenced by ordinary notice of motion (Judiciary Law § 756). In addition, by contesting the application on the merits, and failing to object in a timely manner to the omission of the notice and warning required by Judiciary Law § 756, the defendant waived the protections afforded by the statute (see, Matter of Rappaport, 58 N.Y.2d 725).
However, we find that the defendant was entitled to an evidentiary hearing in light of his denial that he received actual notice that the restraining notice had been reinstated prior to the withdrawal of funds from the bank account in question. Actual notice of the court's mandate is an essential predicate to a contempt order, and under the circumstances of this case, there is no indication that service of the reinstated restraining notice upon the defendant's attorney was sufficient to impute actual notice to the defendant (cf., Matter of McCormick v Axelrod, 59 N.Y.2d 574, amended on other grounds 60 N.Y.2d 652). Here, the issue of actual notice should not have been summarily determined (see, Quantum Heating Servs. v Austern, 100 A.D.2d 843). Brown, J.P., Sullivan, Lawrence and Ritter, JJ., concur.