Kinberg v Kinberg

Kinberg v Kinberg 2015 NY Slip Op 03785 Decided on May 5, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 5, 2015
Tom, J.P., Andrias, Saxe, DeGrasse, Kapnick, JJ.
1628/06 — 15009B 15009A 15009

[*1]15009C Sara Kinberg, Plaintiff-Appellant,

v

Yoram Kinberg, Defendant-Respondent.

Sara Kinberg, appellant pro se.

Yoram Kinberg, respondent pro se.

Orders, Supreme Court, Bronx County (Doris Gonzalez, J.), entered July 22, 2013, which granted plaintiff's motion for enforcement only to the extent of granting a hearing, and denied her motion for an order holding defendant in contempt, and orders, same court and Justice, entered March 5, 2014, which denied plaintiff's motion to dismiss defendant's counterclaims and to enforce the parties' September 7, 2000 agreement, unanimously affirmed, without costs.

In a prior order (59 AD3d 236 [1st Dept 2009]), we vacated awards made to defendant related to the parties' education fund and his share of the proceeds from the sale of the parties' apartment in Haifa, Israel, and reinstated plaintiff's claims for damages for loss of value of stock due to its late transfer by defendant in breach of the settlement agreement, for defendant's breach of the settlement agreement by failing to obtain a religious divorce (get) within 30 days of the execution of the settlement agreement, and for the transfer of funds due and owing to her from the excess balance account portion of defendant's retirement account, and remanded the matter for further proceedings.

Supreme Court properly denied plaintiff's motions for enforcement, and properly denied her motion to dismiss defendant's claims. All of the issues and claims raised in these motions could not be determined by the documentary evidence, and, in accordance with our prior order, were properly included in the hearing commenced by Supreme Court.

Supreme Court properly denied plaintiff's motion for contempt on the ground that she had failed to exhaust remedies (see DRL § 245). In addition, while defendant admitted to failing to make certain payments, he correctly noted that Supreme Court's prior order specifically permitted him to withhold certain payments as a credit against payments owed to him by plaintiff.

We have considered plaintiff's remaining claims and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 5, 2015

DEPUTY CLERK