| Fugazy v Fugazy |
| 2007 NY Slip Op 07396 [44 AD3d 613] |
| October 2, 2007 |
| Appellate Division, Second Department |
| Deborah Fugazy, Appellant, v William Denis Fugazy, Jr.,Respondent. |
—[*1] J. Brian Hansbury, White Plains, N.Y., for respondent.
In a matrimonial action in which the parties were divorced by judgment dated March 4, 2005,the plaintiff appeals, as limited by her brief, from stated portions of an order of the SupremeCourt, Westchester County (Donovan, J.), entered May 31, 2006, which, after a hearing, interalia, granted those branches of the defendant's cross motion which were (1) for a monetary creditfor one half of an obligation to be determined after the resolution of an arbitrable disputebetween the defendant and his former employer, (2) for monetary credits in the amount of$2,993.40 for medical insurance premiums he allegedly paid for medical coverage for theplaintiff from January through June 2005, for payments made for clean-up expenses, includingfor tree damage to the marital residence, for brokers' fees, and in the amount of $18,651.56representing certain credit card charges, and (3) to direct the plaintiff to return certain personalproperty to the defendant.
Ordered that the order is modified, on the law and as an exercise of discretion, by (1) deletingthe provision thereof awarding the defendant a credit in the amount of $18,651.56 representingcertain credit card charges and substituting therefor a provision awarding a credit in the amountof $10,244.77, and (2) deleting the provision thereof granting that branch of the cross motionwhich was for a monetary credit for one half of an obligation to be determined after theresolution of an arbitrable dispute between the defendant and his former employer andsubstituting therefor a provision denying that branch of the cross motion; as so modified, theorder is affirmed insofar as appealed from, with costs payable to the plaintiff.[*2]
Contrary to the plaintiff's contention, under thecircumstances of this case, the court did not err in entertaining the defendant's cross motion,which was set forth in his affidavit in opposition to the plaintiff's order to show cause and did notinclude a formal notice of cross motion. Since the plaintiff was aware of the cross motion,submitted opposition to it, and was not unduly prejudiced by the lack of service of a notice ofcross motion, the court providently exercised its discretion in entertaining the defendant's crossmotion (see Wechsler v People, 13AD3d 941, 942 [2004]; Fox Wander W. Neighborhood Assn. v Luther ForestCommunity Assn., 178 AD2d 871, 872 [1991]).
Additionally, the defendant's claims for certain credits were not barred by the doctrine ofcollateral estoppel. While there is evidence in the record that these issues have previously beenraised by the defendant, there is no indication in the record that such issues have ever beenconsidered and decided. Accordingly, the defendant's claims for credits are not barred by thedoctrine of collateral estoppel (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 455-456[1985]).
The court erroneously awarded the defendant a credit in the amount of $18,651.56 forcharges the plaintiff made on the defendant's credit card. Upon review of the relevant Fleet Bankcredit card statements in the record, the total amount of purchases made was $10,651.56. Theplaintiff made certain claims that the defendant was not entitled to a credit for that entire amountsince certain charges related to expenses for which he was obligated to pay pursuant to apendente lite order or related to purchases which predated the effective date of the pendente liteorder. Many of the plaintiff's claims are not supported by documentary evidence and rest solelyupon her testimony. Thus, to the extent that she claims that certain pharmacy charges and servicestation charges relate to expenses which the defendant is obligated to pay, we decline to reducethe defendant's credit for such charges. Similarly, we decline to reduce the defendant's credit forcharges incurred after September 12, 2003, which the plaintiff asserts related to a payment planfor a computer purchased before that date. However, with respect to a monthly charge for a NewYork Times subscription, the plaintiff testified that such subscription belonged to the defendant,and the defendant conceded that the New York Times was "[f]or both of us." Thus, we reduce thecredit by the amount of $76.80, representing one half of the total amount of the chargesattributable to the New York Times subscriptions on the credit card statements.
In addition, a number of charges totaling $659.97 on the October 2003 credit card statementwere made before September 12, 2003, the effective date of the pendente lite order whichobligated the defendant to pay, among other things, maintenance and certain household expenses.The defendant is not entitled to a full credit for that amount, and it should be treated as a jointmarital obligation. Thus, we find that each party should have an equally-shared obligation forthat amount, and that the amount the defendant's credit should be further reduced is by $329.99,one half of $659.97.
Accordingly, we modify the amount of credit awarded to the defendant for credit card billsfrom $18,651.56 to $10,244.77 ($10,651.56 [total amount of credit card purchases pursuant tostatements submitted by the defendant], minus $329.99 [the defendant's 50% share of credit cardpurchases made prior to the pendente lite order], minus $76.80 [the defendant's 50% share of theNew York Times subscription cost, not including the cost of the subscription in the Oct. bill],totaling $10,244.77).
Many of the plaintiff's remaining contentions, such as her claim that the court improperlydirected her to return to the defendant certain personal property she took with her when [*3]she moved out of the marital residence, and that the courtimproperly awarded the defendant a credit for health insurance premiums he allegedly paid forthe benefit of the plaintiff, are primarily complaints regarding the court's determination of issueswhich rested largely upon its assessment of the credibility of the parties. The hearing court was inthe best position to gauge the credibility of the parties, and its resolution of credibility issues isentitled to great deference on appeal (seeLieberman v Lieberman, 21 AD3d 1004, 1005 [2005]). Under the circumstances, wedecline to disturb the court's determinations with respect to these issues.
However, we agree with the plaintiff that the Supreme Court improperly granted thedefendant's claim for a credit for one half of an obligation to be determined after resolution of anarbitrable dispute between the defendant and his former employer (hereinafter the claim). Theparties' stipulation of settlement was to "be deemed a stipulation of settlement and willconstitute a full and final settlement of their rights and obligations emanating from the maritalrelationship" (emphasis supplied). Since the defendant's claim for a credit against theplaintiff undisputedly emanates from the marital relationship, and the defendant failed to showthat it was unanticipated and was not intended to be included as part of the stipulation ofsettlement, there was no basis for this award in his favor (see Gro-Wit Capital, Ltd. v Obigor, LLC, 33 AD3d 859 [2006];cf. Salata v Salata, 307 AD2d 961 [2003]; Mahon v New York City Health & Hosps.Corp., 303 AD2d 725 [2003]).
The plaintiff's remaining contentions are without merit. Rivera, J.P., Spolzino, Florio andAngiolillo, JJ., concur.