| Sieger v Sieger |
| 2008 NY Slip Op 04859 [51 AD3d 1004] |
| May 27, 2008 |
| Appellate Division, Second Department |
| Chaim Sieger, Respondent, v Helen Sieger,Appellant. |
—[*1] Mallow, Konstam & Hager, P.C., New York, N.Y. (Abe H. Konstam of counsel), forrespondent.
In an action for a divorce and ancillary relief, the defendant former wife appeals, as limitedby her brief, from (1) so much of an amended judgment of the Supreme Court, Kings County(Sunshine, J.), dated April 17, 2007, as directed her to pay to the plaintiff former husband adistributive award in the sum of $8,497,919, and (2) stated portions of an order of the same courtdated August 17, 2007, which, inter alia, denied those branches of her motions which were, ineffect, to reopen the trial for the presentation of additional evidence or, alternatively, to vacatethe amended judgment.
Ordered that the amended judgment is reversed insofar as appealed from, on the law and thefacts, and the matter is remitted to the Supreme Court, Kings County, for further proceedingsconsistent herewith; and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the respondent.
On a prior appeal, this Court remitted this matter to the Supreme Court, Kings County, for adecision setting forth with specificity the calculations employed and the basis therefor relating tothe valuation of the Kingsbridge Heights Rehabilitation & Care Center, Inc. (hereinafter [*2]Kingsbridge), a business which was held in the defendant's name(see Sieger v Sieger, 37 AD3d 585, 588 [2007]). Contrary to the defendant's contentions,there is no basis to disturb the Supreme Court's valuation of Kingsbridge as set forth in theamended judgment. It is well-established that the determination of the value of business interestsis a function properly within the fact-finding power of the court (see Amodio v Amodio,70 NY2d 5 [1987]; Daddino v Daddino, 37 AD3d 518, 519 [2007]; Miness vMiness, 229 AD2d 520, 521 [1996]). Where the determination as to the value of a businessis within the range of the testimony presented, it will not be disturbed on appeal if it restsprimarily on the credibility of expert witnesses and their valuation techniques (see Levine vLevine, 37 AD3d 550, 552 [2007]; Bernstein v Bernstein, 18 AD3d 683, 684[2005]). Here, the Supreme Court's valuation primarily rested upon the methodology utilized bythe court-appointed neutral appraiser with certain adjustments based upon testimony from otherwitnesses. Additionally, on remittitur from this Court, the Supreme Court adequately addressedthis Court's concerns regarding the valuation (see Sieger v Sieger, 37 AD3d 585 [2007]).
The Supreme Court determined that all funds held in Kingsbridge bank accounts weremarital assets, based upon a finding that these funds were the defendant's undistributed profitsfrom Kingsbridge, and selected valuation dates for these accounts preceding the date ofcommencement of this action. As the defendant correctly contends, these accounts should havebeen valued as of the date of commencement of this action (see Domestic Relations Law§ 236 [B] [4] [b]; D'Angelo v D'Angelo, 14 AD3d 476, 476-477 [2005]; seealso Weissman v Weissman, 8 AD3d 264, 265 [2004]; Wahl v Wahl, 277 AD2d 445,446 [2000]). Moreover, certain funds held in these accounts properly belonged to Kingsbridge tofund its business operating expenses, which funds would not be distinct marital assets subject toequitable distribution. Consequently, we remit the matter to the Supreme Court, Kings County,for a hearing solely for the purpose of determining the value of the Kingsbridge bank accounts asof the date of commencement of this action and the extent to which the funds held in theseaccounts represent the defendant's undistributed earnings which would be subject to equitabledistribution (see Domestic Relations Law § 236 [B] [1] [c]) and for the entry of asecond amended judgment thereafter.
The Supreme Court providently exercised its discretion in denying those branches of thedefendant's untimely motions, inter alia, to reopen the trial, filed approximately two years afterthe close of evidence in the 2004 divorce trial and the issuance of the court's memorandumdecision (see Matter of Radisson Community Assn., Inc. v Long, 28 AD3d 88, 91-92[2006]; Shapiro v Shapiro, 151 AD2d 559, 560-561 [1989]; CPLR 4405). To the extentthose branches of her motions were construed to be motions to vacate pursuant to CPLR 5015,they were properly denied. In order to vacate a judgment pursuant to CPLR 5015 (a) (2) on thegrounds of newly-discovered evidence, the movant must establish, inter alia, that the evidencecould not have been discovered earlier through the exercise of due diligence (see Matter ofState Farm Ins. Co. v Colangelo, 44 AD3d 868 [2007]; Matter of Gartmond vConway, 40 AD3d 1094, 1095 [2007]; Reed v Reed, 13 AD3d 602, 603 [2004];Kleet Lbr. Co., Inc. v Saw Horse Remodelers, Inc., 13 AD3d 414, 415 [2004]). In thisregard, the record indicates that the defendant possessed the evidence for several years beforemaking the motions and, therefore, the evidence cannot be characterized as newly discovered.
Under the circumstances of this case, the defendant also failed to establish the existence offraud, misrepresentation, or other misconduct by the plaintiff sufficient to entitle her to vacatur ofthe judgment of divorce (see CPLR 5015 [a] [3]; Mohrmann v Lynch-Mohrmann,24 AD3d 735, 736 [2005]; Badgett v Badgett, 2 AD3d 379 [2003]). Additionally, a partyseeking relief from a judgment pursuant to CPLR 5015 (a) (3) is required to make the motionwithin a reasonable time (see Aames Capital [*3]Corp. vDavidsohn, 24 AD3d 474, 475 [2005]; Richardson v Richardson, 309 AD2d 795,796 [2003]). Here, the defendant was aware of the plaintiff's alleged misconduct in 2000 andwaited until 2007 to file the motion. Consequently, her delay was unreasonable.
The defendant's remaining contentions are without merit. Lifson, J.P., Ritter, Dillon andLeventhal, JJ., concur.