KH v EH

[*1] KH v EH 2006 NY Slip Op 52136(U) [13 Misc 3d 1236(A)] Decided on November 13, 2006 Supreme Court, Suffolk County Pastoressa, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 13, 2006
Supreme Court, Suffolk County

KH, Plaintiff(s),

against

EH, Defendant(s).



15935/2005



PLTF'S/PET'S ATTORNEY:

GASSMAN & KEIDEL, P.C.

666 OLD COUNTRY ROAD

GARDEN CITY, NY 11530

DEFT'S/RESP ATTORNEY:

SAMUELSON, HAUSE & SAMUELSON, LLP

300 GARDEN CITY PLAZA

GARDEN CITY, NEW YORK 11530

LAW GUARDIAN:

ENGLAND & ENGLAND

2556 MIDDLE COUNTRY

CENTEREACH, NEW YORK 11720

Joseph C. Pastoressa, J.

The plaintiff moves for an order pursuant to Domestic Relations Law §243 appointing the plaintiff as the receiver for the defendant's interest in the marital residence to mortgage said residence in an amount sufficient to pay all outstanding arrearage owed to the plaintiff under this court's pendente lite order, and to payoff an outstanding home equity line of credit on the marital residence; and for an order directing the defendant to remove Pine Hollow Stables Inc. from the title and insurance of a certain 2004 Dodge vehicle which is within the defendant's care, custody or control, or, in the alternative, to return the vehicle to its leasing company. The defendant cross-moves for an order, inter alia, pursuant to CPLR §2221 to renew and/or pursuant to Domestic Relations Law §236(B)(9)(b) for a downward modification vacating the defendant's support [*2]obligations as set forth in the court's January 9, 2006 pendente lite order.

The plaintiff seeks to refinance in order to pay pendente lite arrears and an existing line of equity used for the husband and wife's former horse training business called Pine Hollow Stables Inc.(hereinafter PHS) in the approximate amount of $200,000. The plaintiff/wife as president and sole shareholder of PHS authorized the sale of the horse training business, curtailing the income stream utilized to pay for the couple's monthly expenses because, according to the plaintiff, the defendant voluntarily ceased to operate or maintain the business due to a drug abuse problem and as a malingerer, and the plaintiff sought to avoid personal liability for neglect of the animals in their care. The husband counters that the business did not need to be sold as he had hired individuals to run it for him, and further that he did not abandon the business, but could not work and cannot pay his obligations under the court order due to his alleged health problems, which include but are not limited to a heart ailment, chronic sinus disease, asthma and reflux disease.

The moving plaintiff seeks an extraordinary order permitting her to execute a mortgage of the marital residence on behalf of the defendant, and over his objection, pendente lite. The granting of such a mortgage may arguably be the legal equivalent of a sale which the well established Kahn principle suggests may not be ordered without granting marital relief (see, Kahn v. Kahn, 43 NY2d 203; see also, Adamo v. Adamo, 18 AD3d 407; Harrington v. McManus, 303 AD2d 368; Kayden v. Kayden, 234 AD2d 345). The application may also run afoul of the general principle against making an interim distribution of assets to one party (see, Sloan v. Sloan, 127 AD2d 650). Further, it is questionable whether the court, although possessed of the power to determine title to property and possessory rights to property, has the power to compel a spouse to incur a new debt (see, Scheinkman, Practice Commentaries, McKinney's Cons Law of NY, Book 14, Domestic Relations Law C234:1, p 94-95). Plaintiff's counsel cites only one case in support of the application, an apparently unreported decision, largely if not completely inapposite, as it involved a post- judgment application where the tenancy by the entirety of the subject property had obviously been dissolved by the prior divorce, and, thus, the Kahn obstacle was not implicated. [FN1] For the reasons set forth herein, the court will not reach these issues.

Specifically, in opposition to the instant application the defendant has averred that the plaintiff has over one-half million dollars in liquid assets available, including the proceeds from the sale of PHS, and is receiving in addition thereto $180,000 to $240,000 per year in income. The plaintiff in response has denied only that the specific amounts alleged are correct, but offers no averment that there are no such funds available. On a properly supported application which specifically, and not in conclusory fashion, sets forth dire financial circumstances, there is case law supporting the instant application. Although there is a split amongst courts which have considered the issue (see, Lidsky v. Lidsky, 134 Misc 2d 511 [yes]; St. Angelo v. St. Angelo, 130 Misc 2d 583 [yes]; Dweck v. Dweck, 8 Misc 3d 1013A [no]; Sedgh v. Sedgh, 142 Misc 2d 931 [no]). On the plaintiff's affidavit before it, however, the court cannot grant the application or reach the issue as the predicate of specifically delineated dire financial circumstances, requisite to even consider such an application is not present. In assessing the equities of the case, the court notes the uncontested fact that there is a large amount of equity available in the subject marital residence, more than [*3]sufficient to utilize as collateral to credit back either party's pendente lite outlays, upon reallocation either at trial or upon settlement. The court also notes, nonetheless, that in refusing to agree to the proposed refinancing, the defendant runs the risk that such refusal may be established at trial to have been a wasteful dissipation of marital assets. Under the circumstances of this case, the court will deny the application without prejudice to renew upon a particularized supporting affidavit and any supporting case law.

The plaintiff's application for an order directing the defendant to take all necessary steps to remove PHS from the title and insurance of the parties 2004 Dodge is granted, and the defendant shall do so immediately upon service of a copy of this order with notice of entry.

The defendant's cross-motion although denominated a motion to renew is in reality an untimely motion to reargue this court's pendente lite order, and, as such, is denied (see, CPLR §2221 [e]; City of New York v. St. Paul Fire and Marine Ins. Co., 21 AD3d 982, 982-983; Greene v. New York City Hous. Auth., 283 AD2d 458; Levins v. Boyarsky, 283 AD2d 612; Welch Foods, Inc. v. Wilson, 247 AD2d 830). To the extent the cross-motion seeks a downward modification, there has been no showing of a "substantial change in circumstances" to warrant the relief requested and, accordingly, the application is denied on this ground as well (see, Domestic Relations Law §236 [B][9][b]; Sannuto v. Sannuto, 21 AD3d 901, 903; Corr v. Corr, 3 AD3d 567; Klapper v. Klapper, 204 AD2d 518).

The underlying controversy at the crux of the dispute in this case is the factual dispute between the parties as to the state of the defendant's health and earning capacity. The defendant portrays himself as a seriously ill man, practically at death's doorstep, while the plaintiff alleges that the defendant is essentially a malingerer, and a drug abuser, with relatively mundane physical ailments such as high cholesterol and dental problems. The most effective remedy for the present situation, to resolve this factual controversy as well as the numerous other economic issues to be considered, is to speedily proceed to trial where these disputed issues can be decided (see, Sloan v. Sloan, supra; Basch v. Basch,114 AD2d 829). To that end, counsel will be contacted forthwith for a scheduling conference at which this court will set short and immutable deadlines for the completion of all outstanding discovery and a firm expedient trial date. Any further failures to comply with discovery will result in orders of preclusion and/or adverse inference rulings at trial.This shall constitute the decision and order of the court.

Dated:November 13, 2006

Central Islip, New York

________________

HON. JOSEPH C. PASTORESSA

J.S.C.

Footnotes

Footnote 1: This case was remanded and partially affirmed on appeal with the issue before this court not addressed in the appeal (Baffi v. Baffi, 24 AD3d 578).