| VanZandt v VanZandt |
| 2011 NY Slip Op 07558 [88 AD3d 1232] |
| October 27, 2011 |
| Appellate Division, Third Department |
| Donna K. VanZandt, Respondent, v Gary P. VanZandt,Appellant. |
—[*1] Arroyo, Copland & Associates, Albany (Karonne P. Jarrett of counsel), forrespondent.
Malone Jr., J. Appeal from an order of the Supreme Court (Zwack, J.), entered August 19,2010 in Rensselaer County, which, among other things, granted plaintiff's motion forreconsideration.
In 2007, plaintiff commenced this action for divorce and sought equitable distribution of theparties' assets. Defendant did not appear at or participate in a subsequent inquest on the issue ofequitable distribution, nor did he respond to the resulting proposed findings of fact andconclusions of law, in which Supreme Court (Stein, J.) found that defendant had received apension from a former employer and awarded the money from that pension to defendant as partof his equitable share of the assets. A judgment of divorce was thereafter entered and equitabledistribution was ordered. More than two years later, defendant moved to vacate the judgment ofdivorce, claiming that plaintiff had made material misrepresentations at the inquest regarding,among other things, the fact that he had received a pension (see CPLR 5015 [a] [3]).Plaintiff opposed the motion and cross-moved for counsel fees. Finding that plaintiff had mademisrepresentations regarding the existence of a pension, Supreme Court (Zwack, J.) granteddefendant's motion to vacate that part of the judgment of divorce that distributed the maritalassets, denied plaintiff's claim for counsel fees, and scheduled a second inquest on the issue ofequitable distribution.
At the second inquest, plaintiff again testified that defendant had received a pension andproduced the parties' joint tax returns for 1995 and 1997 that reflected such. Plaintiff thereafter[*2]moved to renew and/or reargue her opposition to defendant'smotion to vacate the judgment of divorce. Supreme Court granted that motion and, uponreconsideration, found that plaintiff's newly submitted documentary evidence conclusivelyestablished that she had not made material misrepresentations at the original inquest, denieddefendant's motion to vacate and awarded plaintiff counsel fees.[FN*]Defendant appeals.
Initially, we generally decline to disturb a court's decision to deny or grant a motion to renewand, here, we find that plaintiff's explanation for not submitting the tax returns and otherdocumentary evidence at the time of her original opposition to defendant's motion wasreasonable and provided Supreme Court with an adequate basis upon which it could exercise itsdiscretion (see First Union NationalBank v Williams, 45 AD3d 1029, 1030 [2007]; Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1302-1303 [2007]).
Next, we are unpersuaded by defendant's contentions that Supreme Court erred by denyinghis motion to vacate the equitable distribution portion of the judgment of divorce becauseplaintiff intentionally made material representations at the original inquest. A trial court mayrelieve a party from the terms of a judgment on the grounds of fraud or misrepresentation(see CPLR 5015 [a] [3]), but the decision to grant such motion rests in the trial court'sdiscretion (see Solomon v Solomon,27 AD3d 988, 989 [2006]), and we find no abuse of such discretion here. Althoughdefendant identified a number of issues about which he claimed plaintiff made patently falsestatements at the original inquest, including the existence of a certain pension, the record belieshis contentions. Notably, at the original inquest, plaintiff testified that she believed that defendanthad received a pension only from a certain former employer and that she thought that the moneyhad already been spent by defendant. The documentary evidence she produced at the secondinquest verified that not only had defendant received a retirement benefit from that employer, butthat during the marriage, he had received or cashed out retirement benefits from other employersas well.
Documents in the record also disprove defendant's claims that plaintiff misrepresented thevalue of her own pension by $10,000, lied about the value of his lottery winnings, and lied aboutthe value of his disability payments and Social Security income. Finally, defendant's bare andconclusory assertions regarding the amount of income he receives from rental properties areinsufficient to establish that plaintiff fraudulently misrepresented these amounts at the inquest(see Shultis v Reichel-Shultis, 1AD3d 876, 877-878 [2003]). Under these circumstances, Supreme Court did not abuse itsdiscretion by denying defendant's motion to vacate the equitable distribution portion of thejudgment of divorce (see Solomon v Solomon, 27 AD3d at 990; Molesky vMolesky, 255 AD2d 821, 822 [1998]).
To the extent not specifically addressed, defendant's remaining contentions, including hisclaim that Supreme Court abused its discretion in awarding counsel fees to plaintiff, have beenconsidered and found to be unpersuasive.
Mercure, J.P., Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote *: Although plaintiff's motion waslabeled one to renew and/or reargue her opposition to defendant's motion to vacate, SupremeCourt treated the motion solely as one to renew and, thus, we will likewise consider the motionas such.