| McCaffrey v McCaffrey |
| 2010 NY Slip Op 00114 [69 AD3d 585] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Silvia O. McCaffrey, Appellant, v Dennis McCaffrey,Respondent. |
—[*1] Paul T. Gentile, P.C., New York, N.Y. (Lisa Solomon of counsel), for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief,from stated portions of a judgment of the Supreme Court, Westchester County (Tolbert, J.),dated March 19, 2008, which, upon a decision of the same court dated September 28, 2007,made after a nonjury trial, inter alia, awarded her a share of only one of the defendant's pensions.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The plaintiff's argument that the court failed to adequately advise her of her right to counsel,and that she did not knowingly and intelligently waive her right to counsel in this action, iswithout merit since she had no right to counsel in the action (see Matter of Smiley, 36NY2d 433 [1975]; Merkle v Merkle, 186 AD2d 67, 68 [1992]).
The plaintiff alleged that the defendant has two pensions and contends that the trial courterred in awarding her a share of only one of the two pensions. We disagree. "In a nonjury trial,evaluating the credibility of the respective witnesses and determining which of the proffereditems of evidence are most credible are matters committed to the trial court's sound discretion"(Wasserman v Wasserman, 66AD3d 880, 882 [2009]). Here, the defendant testified that he had one pension. The plaintiffclaimed, without any documentary proof, that the defendant had two pensions. The plaintiff'sstatement was insufficient to prove that the defendant had more than one pension, and the courtwas not required to accept her statement as conclusive proof that the defendant had more thanone pension.
The plaintiff's remaining contention is without merit. Covello, J.P., Angiolillo, Lott andRoman, JJ., concur.