In re Glazer

¶1(dissenting). In our view this appeal is premature and unnecessary, and should be dismissed. Respondent was given an opportunity to purge the citation of civil contempt by filing a supplemental accounting, and admittedly has availed himself of that opportunity; therefore, the order appealed from "is really not a final order in contempt … [and is] nothing more than a judicial declaration to the effect that if the [respondent] does not [file a supplemental accounting before a particular date], the court will then proceed to adjudge him guilty of contempt. Such an order really does the [respondent] here no harm. It does not affect any substantial right. Nothing can be done under the order, as it stands, to the detriment of the [respondent], without further judicial action” (Field v White, 102 App Div 365, 367). There is no practical difference between an order that states that if you do not comply with the court’s directive you are in contempt, and an order that states that you will be in contempt unless you comply with the court’s directive. Both are conditional orders. Until a determination has been made whether respondent, who has timely filed a supplemental accounting, has purged himself of the order of contempt, there is nothing before this court to determine (see, Field v White, supra).If respondent’s supplemental accounting is found to be adequate, then there is no longer any contempt and the contempt adjudication must be vacated (see, Matter of Additional Jan. 1979 Grand Jury v Doe, 84 AD2d 588; Matter of Marino v Meyers, 64 AD2d 600, affd 48 NY2d 866; Matter of Ferrara v Hynes, 63 AD2d 675). If the supplemental accounting is not adequate, then Surrogate’s Court may impose appropriate penalties and this court, on appeal, may then determine whether respondent’s conduct was contemptuous, whether the supplemental accounting was inadequate to purge the contempt and, if so, whether the penalties imposed are appropriate. Until that determination has been made, however, there is no final adjudication of contempt, respondent has suffered no harm, and there is nothing for this court to review. Finally, we note that a waste of judicial time, legal *979expense (four briefs and three oral arguments) and disbursements (a 2,662-page five-volume record on appeal) has been engendered by this meaningless appeal. (Appeal from order of Monroe County Surrogate’s Court, Smith, S.—civil contempt.) Present—Dillon, P. J., Callahan, Boomer, Green and Lawton, JJ.