WESTLAND GARDEN STATE PLAZA, L.P. v. EZAT, INC.

The referee's finding that appellant Hedvat had been properly served with the subpoenas at issue, is supported by the record and was properly confirmed (Nager v Panadis, 238 A.D.2d 135 [1997]). However, the issue of whether Hedvat's noncompliance with the subpoenas constituted contempt was not referred to the referee (see CPLR 4212, 4311) and was not properly passed on by him and, accordingly, the referee's finding on that issue was not a proper basis for the court's adjudication of contempt against Hedvat. The elements of civil contempt (see Matter of Fishel v New York State Div. of Hous. & Community Renewal, 172 A.D.2d 835 [1991]) in this matter involving nonjudicial subpoenas, were, in any event, not made out before the referee, and, even if they had been, the adjudication against Hedvat would still have been infirm since Hedvat was not afforded proper notice of and a hearing on the issue. It follows that there is no basis for an award of attorneys' fees and costs pursuant to Judiciary Law § 773.