| Sicurelli v Sicurelli |
| 2010 NY Slip Op 03898 [73 AD3d 735] |
| May 4, 2010 |
| Appellate Division, Second Department |
| Lisa Sicurelli, Respondent, v Robert Sicurelli, Jr.,Appellant. |
—[*1] Del Vecchio & Racine, LLP, Garden City, N.Y. (Phyllis Recine of counsel), forrespondent.
In a matrimonial action in which the parties were divorced by judgment entered November10, 2005, the defendant appeals, as limited by his brief, from so much of an order of the SupremeCourt, Nassau County (Ross, J.), dated June 26, 2009, as denied those branches of his motionwhich were, in effect, pursuant to CPLR 5015 (a) (2) and (3) to vacate an amended order of thesame court entered September 15, 2008, which, in effect, granted those branches of the plaintiff'smotion which were for maintenance arrears pursuant to the judgment of divorce and the parties'stipulation of settlement dated March 11, 2005, which was incorporated but not merged into thejudgment of divorce, and, in effect, pursuant to Domestic Relations Law § 237 for anaward of a postjudgment attorney's fee, a money judgment of the same court dated September16, 2008, which, upon the amended order, is in favor of the plaintiff and against him in theprincipal sum of $27,000, representing an award of maintenance arrears, and a money judgmentof the same court also dated September 16, 2008, which, upon the amended order, is in favor ofthe plaintiff and against him in the principal sum of $14,806.65, representing an award of anattorney's fee.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied that branch of the defendant's motion which waspursuant to CPLR 5015 (a) (2) to vacate the amended order and the money judgments enteredthereon. The defendant failed to establish that the allegedly newly-discovered evidence hesubmitted in support of his motion could not have been discovered earlier through the exercise ofdue diligence (see Sieger v Sieger,51 AD3d 1004, 1005 [2008]), or that the evidence would probably have produced a differentresult regarding his maintenance obligation (see Jonas v Jonas, 4 AD3d 336 [2004]). Furthermore, because thedefendant failed to meet his burden of establishing the existence of fraud, misrepresentation, ormisconduct on the part of the plaintiff sufficient to entitle him to vacatur of the amended orderand the money judgments, the court properly denied that branch of his motion which soughtvacatur pursuant to CPLR 5015 (a) (3) (see Badgett v Badgett, 2 AD3d 379 [2003]).
The defendant's remaining contentions either are without merit, have been rendered [*2]academic in light of our determination, or are not properly beforethis Court because they are raised for the first time on appeal. Covello, J.P., Santucci, Angiolilloand Dickerson, JJ., concur.