| Fackelman v Fackelman |
| 2008 NY Slip Op 03167 [50 AD3d 732] |
| April 8, 2008 |
| Appellate Division, Second Department |
| Theodore Fackelman, Respondent, v Lisa Fackelman,Appellant. |
—[*1] Posner & Gaier, Hempstead, N.Y. (Stephen Posner of counsel), for respondent.
In an action for a divorce and ancillary relief, the defendant appeals (1), as limited by herbrief, from so much of an order of the Supreme Court, Nassau County (Iannacci, J.), dated July18, 2006, as granted that branch of the plaintiff's motion which was for summary judgment onthe cause of action for a conversion divorce pursuant to Domestic Relations Law § 170 (6),in effect, granted that branch of the plaintiff's motion which was to dismiss her counterclaim forleave to enter a money judgment for moneys owed pursuant to the parties' separation agreementand, in effect, denied that branch of her cross motion which was for a hearing on hercounterclaim for a money judgment for moneys owed pursuant to the parties' separationagreement, and (2) a judgment of the same court entered March 12, 2007, as amended by ajudgment entered November 9, 2007, which awarded the plaintiff a conversion divorce.
Ordered that the appeal from so much of the order as granted that branch of the plaintiff'smotion which was for summary judgment on his cause of action for a conversion divorce isdismissed, without costs or disbursements; and it is further,
Ordered that the judgment, as amended, is affirmed, without costs or disbursements; and it isfurther,
Ordered the order is reversed insofar as reviewed, on the law, without costs ordisbursements, that branch of the plaintiff's motion which to dismiss the defendant's counterclaimfor leave to enter a money judgment is denied, that branch of the defendant's cross motion whichwas for a hearing on her counterclaim for leave to enter a money judgment is granted, and thematter is remitted to the Supreme Court, Nassau County, for further proceedings in accordanceherewith.[*2]
The appeal from so much of the order as granted thatbranch of the plaintiff's motion which was for summary judgment on his cause of action for aconversion divorce must be dismissed because the right of direct appeal therefrom terminatedwith the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]).The issues raised on the appeal from that portion of the order are brought up for review and havebeen considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The parties were married on February 14, 1993. After marital difficulties arose, the partiesexecuted a written separation agreement on April 6, 2001 acknowledged in the form required toentitle a deed to be recorded. About four years later, the plaintiff husband commenced the instantaction, inter alia, for a conversion divorce pursuant to Domestic Relations Law § 170 (6).The defendant wife counterclaimed for a conversion divorce also based upon the separationagreement, and for leave to enter a money judgment for certain expenses she had paid with theexpectation of reimbursement pursuant to the separation agreement.
The Supreme Court properly granted that branch of the plaintiff's motion which was forsummary judgment on his cause of action for a conversion divorce (see DomesticRelations Law § 170 [6]; Christian v Christian, 42 NY2d 63, 72 [1977]; Rosenzweig v Singer, 18 AD3d853, 854 [2005]). The evidence submitted in support of the motion demonstrated that theparties lived separate and apart for more than a year following the execution of theproperly-acknowledged separation agreement and that the plaintiff substantially complied withthe provisions of the agreement (seeMorin v Morin, 38 AD3d 953, 955 [2007]). In opposition, the defendant failed to raise atriable issue of fact (see Berman v Berman, 72 AD2d 425, 428 [1980], affd 52NY2d 723, 725 [1980]).
However, the Supreme Court erred when, in effect, it dismissed the defendant's counterclaimfor a money judgment and denied that branch of her cross motion which was for a hearing on hercounterclaim for leave to enter a money judgment for moneys owed by the plaintiff pursuant tothe parties' separation agreement. The defendant contended that the plaintiff failed to reimburseher for certain expenses totaling $4,070.80 which she paid in reliance on the separationagreement. The plaintiff did not deny that he failed to make those reimbursements, alleging thathe was not provided with any receipts or documents evidencing the payments. Accordingly, theSupreme Court should have set the matter down for a hearing to determine the amount, if any, ofarrears due pursuant to the separation agreement (see D'Anna v D'Anna, 17 AD3d 400, 401 [2005]; Vogel v Vogel, 12 AD3d 592,592-593 [2004]; Felton v Felton, 175 AD2d 794, 795 [1991]). Spolzino, J.P., Santucci,Angiolillo and Balkin, JJ., concur.