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Week 5-29-2019

Written by Samantha Sparacino

Court denies motion for leave to reargue and renew his prior motion seeking to modify an amended domestic relations order

In a matrimonial action, the plaintiff appeals from a Supreme Court order denying the plaintiffs motion, in effect, for leave to reargue and renew his prior motion, which had been previously denied. The initial motion was to seek a modification of the DRO to exclude the plaintiffs salary increases, allegedly attributable to his postdivorce promotions, from the formula used to calculate the defendants share of the plaintiffs benefits. The Appellate Division agrees with the lower Courts determination to deny that branch of the plaintiffs motion based on the fact that the plaintiff did not offer any new facts that were unavailable to him at the time of the prior motion and which would have changed the courts prior ruling to deny his motion (see CPLR 2221[e][2]; Perlman v Perlman, 163 AD3d at 733; Kamel v Mukhopady, 156 AD3d 688, 689; Arkin v 141 05 Pershing Realty Corp., 138 AD3d 1044, 1045; Plaza Equities, LLC, v Lamberti, 118 AD3d at 688; Matter of Leyberman v Leyberman, 43 AD3d 925, 926).

Cripps v Dibisceglie, 2016-13230

Granting mother’s petition to relocate with the parties’ child

Here, the mother was awarded sole custody of the parties’ child after the father’s failure to appear at a hearing and she further petitioned to relocate with the child to Florida. After a hearing and an in camera interview with the child, the Court granted the mother’s petition, which the father appeals. The Appellate Division agrees with the lower Court’s determination as evidence portrayed that the relocation would be in the child’s best interest (see Matter of Tropea v Tropea, 87 NY2d 727, 741; Matter of Ventura v Huggins, 141 AD3d 600, 600). Evidence from the hearing supports that the child’s life would be emotionally and economically advanced by the relocation and that it is feasible to maintain the child’s relationship with the father through alternate parental access arrangements (see Matter of Ali v Abrams, 158 AD3d at 675; Matter of Packer v Ferrante, 139 AD3d at 958).

Matter of Alicea v Fernandez, 2018-02671

Awarding custody without a hearing

The mother appeals from an order, made without a hearing, which awarded temporary custody of the parties’ child to the father with supervised parental access to the mother. The Appellate Division agrees with this determination based on the fact that the father demonstrated the necessary exigent circumstances warranting the award without the need for a hearing (see Matter of Morrissey v Morrissey, 124 AD3d 1367; Matter of Ward v Ward, 89 AD3d 1518).

Matter of Daclin-Goyatton v Cousins, 2018-11067

Amend judgment of divorce to incorporate modification agreements in regards to child support

In a matrimonial action, the plaintiff appeals from an order which granted that branch of the defendant’s motion which was to amended the parties’ judgment of divorce with respect to child support pursuant to the parties modification agreements dated after their judgment was entered. The Court also directed a conference and, if necessary, a hearing for determination of the defendants child support arrears. The Appellate Division does not agree with the lower Court to direct a court appearance based on the fact that leave to appeal from that portion of the order had not been granted. The Appellate Division does agree that the modification agreements are enforceable to the partiesseparation agreements as they are signed by both parties as required by the partiesagreement.

Schaff v Schaff, 201800537

Court denies nonpartys application for an adjournment of its motion for leave to withdraw as counsel

Here, nonparty Greher Law Offices, P.C., appeals from an order which, inter alia, denied the nonpartys application for an adjournment of its motion for leave to withdraw as counsel for the plaintiff and precluded the nonparty from asserting any lien or collecting any additional counsel fees from the plaintiff for services rendered on the plaintiffs behalf in this action,

The appellant may challenge the denial of its application for an adjournment of the motion in its absence since it was the subject of contest before the Court (see Park Lane N. Owners, Inc. v Gengo, 151 AD3d 874, 875; Adotey v British Airways, PLC, 145 AD3d 748, 749; Matter of Daija K.P. [Danielle P.), 129 AD3d 1087, 1087; Hawes v Lewis, 127 AD3d 921, 922). Further, the Supreme Court properly declined to adjourn the motion based on the fact that the motion was already adjourned after a representative for the appellant appeared at the first conference lacking the sufficient knowledge of the case, the appellant failed to submit the affirmation of actual engagement in a timely manner for the adjourned date, and that matrimonial actions are entitled to priority over civil actions, to which the appellant was attending on that adjourned court date (see 22 NYCRR 125.1[c]).

Wallace v Wallace, 201700281

Court allows the memoradum of understanding to be set aside

Here, the parties in an action for divorce and ancillary relief signed a memorandum of understanding,agreeing that the defendant would pay the plaintiff $150,000 in full satisfaction in regards to equitable distribution, child support, and maintenance. The plaintiff thereafter refused to sign a stipulation of settlement and the defendant moved to enforce their memorandum of understanding and to direct the plaintiff to execute the stipulation of settlement as well as any other document necessary to finalize the divorce. The plaintiff crossmoved to set aside the memorandum of understand, which the Court granted. The plaintiff sufficiently portrayed that the terms of the memorandum of understanding were manifestly unfair given the nature and magnitude of the rights she waived (see Petracca v Petracca, 101 AD3d at 697699).

Zavulunova v Aminov, 201712063

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Petroske Riezenman & Meyers, P.C. staff