Fabrikant v Fabrikant

Fabrikant v Fabrikant 2010 NY Slip Op 07688 [77 AD3d 594] October 28, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 15, 2010

Amy Fabrikant, Respondent-Appellant,
v
Jay A. Fabrikant, Appellant-Respondent.

—[*1] Maloof, Lebowitz, Connahan & Oleske, New York (Charles J. Gayner of counsel), for appellant-respondent.

Bernard G. Post LLP, New York (William S. Hochenberg of counsel), for respondent-appellant.

Order, Supreme Court, New York County (Saralee Evans, J.), entered February 22, 2010, which, inter alia, denied defendant's motion for a downward modification of his child and spousal support obligations, granted plaintiff's cross motion to the extent of ordering defendant to provide evidence of life insurance and pay plaintiff support arrears, and granting plaintiff a money judgment for such arrears, and denied plaintiff's motion to hold defendant in contempt and to require him to post security to insure future support payments, unanimously affirmed, without costs.

The Supreme Court properly denied, without a hearing, defendant's motion for a downward modification of his support obligations because he did not establish, prima facie, that there had been a substantial, unanticipated, and unreasonable change in circumstances or that continued enforcement of his obligations would create an extreme hardship (see Domestic Relations Law § 236 [B] [9] [b]; Farkas v Farkas, 192 AD2d 384 [1993]). We note that while defendant presented evidence and argument regarding his health, much of that had previously been rejected by the Supreme Court in earlier proceedings and thus did not constitute a change of circumstances. More significantly, defendant failed to address the imputation of income to him, which was affirmed by this Court (62 AD3d 585 [2009]).

The Supreme Court providently exercised its discretion in declining to adjudicate defendant in contempt for his failure to provide proof of current life insurance and instead directing him to provide such proof (see Matter of Storm, 28 AD2d 290 [1967]).

Similarly, the Supreme Court providently exercised its discretion in declining to order the posting of security to insure future payment of his support obligations and instead directing defendant to pay the accrued arrears and granting plaintiff a money judgment for those arrears (Domestic Relations Law § 243; Adler v Adler, 203 AD2d 81 [1994]). Concur—Acosta, J.P., Freedman, Richter and Abdus-Salaam, JJ.