In the Matter of Richard Goldberg, Appellant, v. Barry Birbrower, Respondent

In the Matter of Richard Goldberg, Appellant, v Barry Birbrower, Respondent. [721 NYS2d 819] [MAJORITY] —In a proceeding pursuant to CPLR article 78 to review a determination of the respondent, dated June 15, 2000, which summarily adjudged the petitioner guilty of criminal contempt and imposed a period of incarceration of 60 days, the appeal is from a judgment of the Supreme Court, Westchester County (Leavitt, J.), dated October 3, 2000, which denied the petition and dismissed the proceeding. Ordered that the judgment is modified by deleting the provision thereof which, in effect, determined that the term of incarceration of 60 days was proper and substituting therefor a provision reducing the term of incarceration from 60 days to 30 days; as so modified, the judgment is affirmed, without costs or disbursements. The petitioner was properly adjudged in criminal contempt, and was given an opportunity to be heard within the meaning of 22 NYCRR 701.2 (c) (cf., Matter of Spain v Braatz, 217 AD2d 661). The term of incarceration, however, was excessive to the extent indicated. Santucci, J. P., S. Miller, McGinity and Smith, JJ., concur.