| Nicolia v Nicolia |
| 2011 NY Slip Op 04641 [84 AD3d 1327] |
| May 31, 2011 |
| Appellate Division, Second Department |
| Diane P. Nicolia, Respondent, v Roberto L. Nicolia,Appellant. |
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In an action for a divorce and ancillary relief, the husband appeals from an order of theSupreme Court, Suffolk County (LaSalle, J.), dated June 10, 2010, which (1), in effect, grantedthat branch of the wife's motion which was for leave to renew that branch of her prior motionwhich was to compel him to pay a $50,000 interim retainer fee to a real estate appraisal firm,which had been denied in an order dated March 19, 2010, and, upon renewal, in effect, vacatedthe determination in the order dated March 19, 2010, denying that branch of the wife's priormotion and thereupon granted that branch of her motion, and (2), in effect, granted that branch ofthe wife's motion which was for leave to renew and reargue that branch of her prior motionwhich was to compel him to pay a $40,000 interim retainer fee to a forensic accounting firm,which had been denied in the order dated March 19, 2010, and, upon renewal and reargument, ineffect, vacated the determination in the order dated March 19, 2010, denying that branch of thewife's prior motion and thereupon granted that branch of her motion.
Ordered that the order dated June 10, 2010, is reversed, on the facts and in the exercise ofdiscretion, with costs, that branch of the wife's motion which was for leave to renew that branchof her prior motion which was to compel the husband to pay a $50,000 interim retainer fee to areal estate appraisal firm is denied, that branch of the wife's motion which was for leave to renewand reargue that branch of her prior motion which was to compel the husband to pay a $40,000interim retainer fee to a forensic accounting firm is denied, and the determinations in the orderdated March 19, 2010, are reinstated.
The wife commenced this action for a divorce and ancillary relief. The parties agreed, in astipulation that was so-ordered by the Supreme Court, that they would be bound by thedetermination of an identified neutral forensic accounting firm as to the value of the husband'svarious business interests. The parties also agreed that they would be bound by the determinationof a neutral real estate appraisal firm as to the value of the real properties identified and describedin the husband's statement of net worth. The so-ordered stipulation provided that the identity ofthe real estate appraiser would be determined at a future time.
Approximately19 months after the stipulation was executed, the wife moved for, amongother things, an order directing the husband to pay a $50,000 interim retainer fee so that shecould hire her [*2]own real estate appraisal firm and a $40,000retainer fee so that she could hire her own forensic accounting firm. The Supreme Court deniedthose branches of the wife's motion.
The wife then moved for renewal of that branch of her motion which was to direct thehusband to pay a $50,000 interim retainer fee so that she could hire her own real estate appraisalfirm and for renewal/reargument of that branch of her motion which was to direct the husband topay a $40,000 retainer fee so that she could hire her own forensic accounting firm. The SupremeCourt granted both branches of the wife's motion and, upon renewal and reargument, directed thehusband to pay a $50,000 interim retainer fee so that the wife could hire her own real estateappraisal firm and a $40,000 retainer fee so that she could hire her own forensic accounting firm.
The Supreme Court improvidently exercised its discretion in granting that branch of thewife's motion which was for leave to renew that branch of her prior motion which was to compelthe husband to pay a $50,000 interim retainer fee to a real estate appraisal firm. The affirmationof her attorney was without evidentiary value (see Warrington v Ryder Truck Rental,Inc., 35 AD3d 455, 456 [2006]; Clarke v Helene Curtis, Inc., 293 AD2d 701, 702[2002]; Franklyn Folding Box Co. v Grinnell Mfg., 234 AD2d 505, 506 [1996];Zimmer v Cathedral School of St. Mary & St. Paul, 204 AD2d 538, 539 [1994]), and she,therefore, failed to provide new facts not offered on the prior motion that would change the priordetermination of this branch of her motion (see CPLR 2221 [e]; see also SCGArchitects v Smith, Buss & Jacobs, LLP, 82 AD3d 953 [2011]).
The Supreme Court also improvidently exercised its discretion in granting that branch of thewife's motion which was for leave to renew and reargue that branch of her prior motion whichwas to compel the husband to pay a $40,000 interim retainer fee to a forensic accounting firm.She failed to provide new facts not offered on the prior motion that would change the priordetermination (see CPLR 2221 [e]; see also SCG Architects v Smith, Buss & Jacobs,LLP, 82 AD3d 953 [2011]). Furthermore, she "made no effort to demonstrate to the [court]in what manner it had either overlooked or misapprehended the relevant facts or law" (Matterof Anthony J. Carter, DDS, P.C. v Carter, 81 AD3d 819, 820 [2011]; see V. VeeraswamyRealty v Yenom Corp., 71 AD3d 874 [2010]). In any event, "the Supreme Court did notoverlook or misapprehend the facts or law in its initial determination, or mistakenly arrive at itsearlier determination" (Matter of Hill v New York City Tr. Auth., 68 AD3d 866, 867[2009]; see Mazinov v Rella, 79 AD3d 979, 980 [2010]; Everhart v County ofNassau, 65 AD3d 1277, 1278 [2009]).
In light of the foregoing, we need not reach the husband's remaining contentions. Covello,J.P., Eng, Chambers and Miller, JJ., concur.