Opinion
Submitted June 28, 2001.
August 20, 2001.
In an action to recover damages for personal injuries, Sandra Grossman, a nonparty witness, appeals from (1) a decision of the Supreme Court, Nassau County (Galasso, J.), dated January 26, 2001, and (2) an order of the same court, entered January 29, 2001, which, inter alia, granted the plaintiff's application to hold her in civil contempt.
Kenneth B. Schwartz, Garden City, N.Y., for nonparty-appellant.
Eliot F. Bloom, Mineola, N.Y., for respondent (no brief filed).
Before: GLORIA GOLDSTEIN, J.P., WILLIAM D. FRIEDMANN, LEO F. McGINITY, THOMAS A. ADAMS, JJ.
ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509); and it is further,
ORDERED that the order entered January 29, 2001, is reversed, on the law, and the application to hold the appellant in civil contempt is denied; and it is further,
ORDERED that the appellant is awarded one bill of costs.
The plaintiff moved to hold the appellant, a nonparty witness, in civil contempt based, inter alia, on her failure to produce subpoenaed documents at a court-ordered deposition. The plaintiff's notice of motion, however, did not warn the appellant, as required by Judiciary Law — 756, that her failure to appear in court may result in her immediate arrest and imprisonment. Because the appellant did not waive the issue (cf., Matter of Rappaport, 58 N.Y.2d 725, 726), the Supreme Court was therefore without jurisdiction to punish the appellant for civil contempt (see, Cappello v. Cappello, 274 A.D.2d 538, 539; Matter of Dawn P., 180 A.D.2d 800; Murrin v. Murrin, 93 A.D.2d 858).