Smulczeski v Smulczeski
2015 NY Slip Op 03822 [128 AD3d 671]
May 6, 2015
Appellate Division, Second Department
As corrected through Wednesday, July 1, 2015


[*1]
 Susan Smulczeski, Appellant,
v
RichardSmulczeski, Respondent.

Susan Smulczeski, Commack, N.Y., appellant pro se.

Mark A. Peterson, Smithtown, N.Y., for respondent.

In a matrimonial action in which the parties were divorced by judgment datedOctober 22, 2003, the plaintiff appeals, as limited by her brief, from so much of an orderof the Supreme Court, Suffolk County (Behar, J.), dated October 30, 2013, as denied herrequest for certain affirmative relief.

Ordered that on the Court's own motion, the appellant's notice of appeal is treated asan application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c]); and it is further,

Ordered that the order is affirmed insofar as appealed from, with costs.

To the extent the Supreme Court concluded that it lacked discretion to consider theplaintiff's request for affirmative relief, which was not presented in a proper cross motionpursuant to CPLR 2215, its conclusion was erroneous. Although "a party seeking reliefin connection with another party's motion is, as a general rule, required to do so by wayof a cross motion," courts "retain discretion to entertain requests for affirmative reliefthat do not meet the requirements of CPLR 2215" (Fried v Jacob Holding, Inc., 110 AD3d 56, 64, 65[2013]).

Nonetheless, the plaintiff would not have been entitled to the requested relief had shemade a cross motion under CPLR 2215. The plaintiff sought to alter the equitabledistribution provisions of the parties' judgment of divorce, but the Supreme Court lackedthe authority to do so (seeWasserman v Wasserman, 103 AD3d 793 [2013]).

The plaintiff's remaining contentions relate to relief granted by the Supreme Court ina money judgment entered January 29, 2013, and those contentions have been addressedin this Court's decision on the appeals from that money judgment and a related orderdated November 26, 2012 (see Smulczeski v Smulczeski, 128 AD3d 670 [2015] [decided herewith]).

Accordingly, we affirm the order insofar as appealed from. Skelos, J.P., Roman,Hinds-Radix and LaSalle, JJ., concur.

[*2]

Motion by therespondent to strike the appellant's brief on an appeal from an order of the SupremeCourt, Suffolk County, dated October 30, 2013, on the ground that it improperly raisesarguments for the first time on appeal. By decision and order on motion of this Courtdated December 1, 2014, the motion was held in abeyance and referred to the panel ofJustices hearing the appeal for determination upon the argument or submissionthereof.

Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the submission of the appeal, it is

Ordered that the motion is denied. Skelos, J.P., Roman, Hinds-Radix and LaSalle,JJ., concur.


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