Piperis v Klausner-Piperis

[*1] Piperis v Klausner-Piperis 2009 NY Slip Op 51652(U) [24 Misc 3d 1227(A)] Decided on July 20, 2009 Supreme Court, Westchester County Jamieson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 20, 2009
Supreme Court, Westchester County

Joseph Piperis, Plaintiff,

against

Lori Klausner-Piperis, Defendant.



13371-2000



Guttridge & Cambareri, P.C.

Attorneys for Plaintiff

303 South Broadway, Suite 100

Tarrytown, NY 10591

Hal B. Greenwald, Esq.

Attorney for Defendant

35 East Grassy Sprain Road

Yonkers, NY 10710

Linda S. Jamieson, J.

In his first motion, plaintiff seeks a conversion divorce. In her cross-motion, defendant seeks an order denying the motion for the conversion divorce or, in the alternative, granting that motion as long as defendant's applications for certain payments set forth in her affidavit are granted. In his cross-cross-motion [FN1], plaintiff seeks an order (1) compelling defendant to comply with the parties' Separation Agreement; (2) granting him a judgment for child support arrears from 2005 through the present; (3) directing defendant to contribute to the statutory add-on expenses for the children; and (4) directing defendant to contribute to the cost of college for their son.

All three motions are denied, and this action is dismissed. This action, which was filed in 2000, was settled nearly seven years ago, in September 2002. At that time, the parties entered into a Separation Agreement on the Record, which was thereafter So Ordered by the then-presiding Justice. The parties were instructed, at that time, that to obtain a divorce based on the Separation Agreement, they would have to commence a new action, with a new index number [*2]"but it can be done as uncontested." Separation Agreement at 20. See also 11 NY Prac., NY Law of Dom. Rel. § 11:4 ("a new action is required" for a conversion divorce).

Instead, in May 2008,[FN2] five and a half years later, plaintiff filed his motion for a conversion divorce in this same 2000 action. This was improper. Should plaintiff wish to obtain a divorce based on the parties' Separation Agreement pursuant to DRL § 170(6), he must commence a new action, and may file the papers for an uncontested divorce (if the parties cannot work out their financial differences). With respect to the motions sequences 7 and 8, for various items of financial relief, they are denied as well. This case has been disposed for nearly seven years. If the parties want to commence a new action to argue over these issues, they may do so.[FN3]

The Court observes that the attorney appointed by Judge Nicolai, Hal B. Greenwald, is not the attorney who filed a reply on behalf of defendant. That attorney is Martin J. Rosen. As Mr. Rosen has not filed a Notice of Appearance or any substitution of counsel forms, the Court is sending a copy of this Decision and Order to Mr. Greenwald, who was the last known counsel of record for defendant.

The foregoing constitutes the decision and order of the Court.

Dated:White Plains, New York

July, 2009

____________________________

HON. LINDA S. JAMIESON

Justice of the Supreme Court

To:

Guttridge & Cambareri, P.C.

Attorneys for Plaintiff

303 South Broadway, Suite 100

Tarrytown, NY 10591

Hal B. Greenwald, Esq.

Attorney for Defendant

35 East Grassy Sprain Road

Yonkers, NY 10710 Footnotes

Footnote 1:While these motions are improperly denominated and/or made, in light of the ruling herein, the Court will not address these issues.

Footnote 2:Once this case was reassigned to this Court, defendant made a motion to proceed as a poor person and for assigned counsel before Judge Nicolai, which stayed the case for many months.

Footnote 3:The Court notes that as defendant's motion contained no evidence in support of her contentions, the Court is doubtful that she will prevail on her claims in a new action.