| Saia v Saia |
| 2012 NY Slip Op 00171 [91 AD3d 1110] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| Antonino Saia, Appellant, v Wendy Hoffman Saia,Respondent. |
—[*1] Tabner, Ryan & Keniry, Albany (Patricia A. Morrissey of counsel), for respondent.
Lahtinen, J. Appeal from a judgment of the Supreme Court (McNamara, J.), enteredNovember 12, 2010 in Albany County, granting plaintiff a divorce, upon a decision of the court.
The parties were married in 2000, they have no children, and each commenced a divorceaction against the other in 2009. They stipulated to a ground for divorce and a bench trial ensuedregarding equitable distribution and maintenance. Supreme Court determined that there was nomarital property subject to equitable distribution and that plaintiff was not entitled tomaintenance. Plaintiff appeals.
We affirm. Defendant owns four parcels, two acquired before the marriage and two acquiredduring the marriage. "Property acquired during [the] marriage is presumed to be marital unlessthe presumption is rebutted by the party asserting the separate property claim" (Solomon vSolomon, 307 AD2d 558, 559 [2003], appeal dismissed 1 NY3d 546 [2003] [citationomitted]; accord Cease v Cease 72AD3d 1450, 1451 [2010]). With regard to a parcel located on Eighth Avenue in the City ofWatervliet, Albany County, purchased during the marriage in 2004, defendant offered proof that,although the deed and mortgage are in her name, she did not contribute to the purchase price, theproperty belongs to her disabled friend, she took title in her name to help the friend, the friendpaid all expenses including the mortgage, no marital funds were used for upkeep or otherwise,and plaintiff had not done any work on this parcel. A parcel acquired several years later onCongress Street in the City of Troy, Rensselaer County was, according to defendant, purchasedby her father and given to her as a gift. That property has not [*2]produced any income and plaintiff did not do any work on theproperty. Supreme Court credited defendant's proof regarding these two properties and suchproof provides ample support for the court's determination that these two parcels, acquired duringthe marriage, nevertheless were separate property.
The other two properties were separate property acquired by defendant before the marriage.Plaintiff failed to adequately establish any appreciation in value of these properties during themarriage or that he contributed to an increase in value by his efforts. Thus, Supreme Court didnot err in finding that he was not entitled to an equitable distribution award as to these twoproperties (see Bonanno v Bonanno,57 AD3d 1260, 1261 [2008]; Burgio v Burgio, 278 AD2d 767, 768-769 [2000]).
"The amount and duration of maintenance are generally left to the trial court's discretion aslong as the court considers the statutory factors and provides a basis for its conclusion" (Blay v Blay, 51 AD3d 1189,1191-1192 [2008] [citation omitted]; seeFosdick v Fosdick, 46 AD3d 1138, 1140 [2007]). Supreme Court adequately discussedthe statutory factors. Plaintiff has a secure source and sufficient amount of income upon which tolive and to basically continue the marital standard of living. The marriage was not long, therewere no children, plaintiff owns separate real property in Europe, and he is covered by healthinsurance. The determination not to award maintenance was well within Supreme Court'sdiscretion. The remaining issues have been considered and are unavailing.
Mercure, A.P.J., Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed, without costs.