Grasso v Grasso

[*1] Grasso v Grasso 2009 NY Slip Op 52578(U) [25 Misc 3d 1244(A)] Decided on September 15, 2009 Supreme Court, Nassau County De Stefano, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through January 7, 2010; it will not be published in the printed Official Reports.

Decided on September 15, 2009
Supreme Court, Nassau County

Robert D. Grasso, Plaintiff,

against

Donna A. Grasso, Defendant.



200245-00

Vito M. De Stefano, J.

In this action for divorce and ancillary relief, JHO Freidenberg rendered judgment on May 10, 2005, after a nonjury trial. The Plaintiff Husband ("Husband") appealed from the judgment, which was modified and remitted by the Appellate Division, Second Judicial Department, for a hearing to determine the amount of marital debt, including accrued interest as of the date of commencement of the action.

On March 5, 18 and 19, this court conducted the hearing, after which it rendered a decision and order (one paper) dated June 13, 2009. A copy of the order with notice of entry was served on or about June 30, 2009. Thereafter, on August 4, 2009, the Defendant Wife ("Wife") made the instant motion, seeking: 1. "reargument of the order of June 13, 2009 and upon reargument modifying the amount marital debt to be repaid by Defendant to Plaintiff by $7500"; and, 2. granting sanctions against the Husband and his attorney pursuant to Part 130 of the Rules of the Chief Administrator of the Courts.

Initially, the court notes that branch "1" of the motion is mistakenly denominated as one for reargument inasmuch as the decision and order from which relief is sought was rendered not upon motion but after a hearing, upon remittitur by the Appellate Division. Thus, reargument does not lie and the time constraints imposed by CPLR 2221 are inapplicable. In effect, the Wife seeks modification of a decision rendered after a hearing, which, itself, was a continuation of trial. Accordingly, the statutory section under which the Wife actually seeks relief is CPLR 4404(b). The time frame within which to bring a motion pursuant to that section is 15 days after decision (CPLR 4405). Of course, the court can relieve the aggrieved party of this time [*2]constraint, however, "there must be an overriding and persuasive reason" to do so (see Barnes v. Oceanus Nav. Corp., Ltd., 21 AD3d 975 [2d Dept 2005]; Moore v State, 45 Misc 2d 60 [Ct Claims 1965], cited with approval by Matter of Alison VV, 211 AD2d 988 [3d Dept 1995]).

At bar, the Wife has failed to present an overriding and persuasive reason to disregard the 15-day limitation set forth in CPLR 4405. First, the court takes judicial notice of correspondence which is part of the court's file,[FN1] wherein the Wife's attorney asserted, "I am in receipt of the decision-order of the Court of June 13th and the fax method is appreciated. I am requesting that the Court not sign any amended judgment as I have confirmed with my client that she will pay the $33,046.70 directed by the court, by about July 5th. I am writing to save counsel from preparing the document and expect that the client will do as promised as the entry of a judgment is quite destructive of personal credit. This is without prejudice to Mr. Grasso appealing the order if he so desires and there are no conditions to the payment."

Moreover, even prior to rendering the decision and order of June 13, 2009, the Wife, on April 9, 2009, attempted to move the court for an additional "credit and offset" against any amount that would be determined to be owing to the Husband following the hearing. In declining to sign the Wife's application to have the Husband show cause as to why the relief she sought should not be granted, this court stated: "this application was made in violation of the Part rules, which require a telephone conference with the court prior to the making of such applications. Second, the court conducted a hearing pursuant to Appellate Division order to determine, inter alia, the marital debt, after which the parties were given an opportunity to submit post-hearing memoranda, which they declined to do. The instant application appears to represent an effort by the putative movant to add to the record or to advance additional arguments not raised in the closing."

In short, there is simply no excuse for bringing the instant motion at this late juncture. In any event, the Wife's papers fail to demonstrate that the court erred in calculating the amount of marital debt. Therefore, branch "1" of the Wife's motion is denied.

Branch "2" of the Wife's motion, seeking attorneys' fees as a sanction against the Husband and his attorney, apparently for conduct occurring prior to the hearing referred to herein, is denied. In this regard, the application is not timely. Furthermore, the Wife's papers fail to sufficiently allege or demonstrate frivolous conduct on the part of the Husband or his attorney (22 NYCRR § 130-1.1[c]).

This constitutes the decision and order of the court. [*3]

Dated: September 15, 2009

___________________________

Hon. Vito M. DeStefano, J.S.C. Footnotes

Footnote 1:(see Casson v. Casson, 107 AD2d 342 [1st Dept.1985]).