Aloi v. Simoni

• Decision Date: 01 March 2011
• Citation: 82 A.D.3d 683,918 N.Y.S.2d 506
• Parties: Cindy L. ALOI, appellant-respondent, v. Carl D. SIMONI, respondent-appellant.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 506
82 A.D.3d 683

Cindy L. ALOI, appellant-respondent,
v.
Carl D. SIMONI, respondent-appellant.

Supreme Court, Appellate Division, Second Department, New York.

March 1, 2011.

918 N.Y.S.2d 507

Sheresky Aronson Mayefsky & Sloan, LLP, New York, N.Y. (Lawrence B. Trachtenberg, David Aronson, and Jillian E. Wieder of counsel), for appellant-respondent.

Tarshis, Catania, Liberth, Mahon & Milligram, PLLC, Newburgh, N.Y. (Rhett D. Weires of counsel), for respondent-appellant.

PETER B. SKELOS, J.P., RANDALL T. ENG, L. PRISCILLA HALL, and PLUMMER E. LOTT, JJ.

In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from (1) so much of an order of the Supreme Court, Orange County (Bivona, J.), dated June 24, 2008, as, after a hearing, denied her application for an award of an attorney's fee, (2) stated portions of a judgment of the same court dated June 24, 2008, and (3) stated portions of an amended judgment of the same court dated April 13, 2009, which, upon a decision dated December 27, 2007, made after a nonjury trial, and upon the order dated June 24, 2008, inter alia, equitably distributed the parties' assets, and the defendant cross-appeals, as limited by his brief, from stated portions of the amended judgment.

ORDERED that the appeal from the order dated June 24, 2008, is dismissed; and it is further,

ORDERED that the appeal from the judgment dated June 24, 2008, is dismissed, as the judgment was superseded by the amended judgment dated April 13, 2009; and it is further,

ORDERED that the amended judgment dated April 13, 2009, is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provision thereof determining that the plaintiff's retirement accounts appreciated by the sum of $296,545.26 during the course of the marriage and directing that in order to equalize the parties' retirement account assets, the defendant is to pay the sum of $76,784.87 directly to the plaintiff through tender of cash or issuance of a Qualified Domestic Relations Order, and substituting therefor a provision determining that the plaintiff's retirement accounts appreciated by the sum of $25,189 and directing the defendant to pay the sum of $212,463 directly to the plaintiff by the same means, (2) by adding a provision thereto awarding the plaintiff interest on the distributive

918 N.Y.S.2d 508

award from the date of the decision until the entry of the judgment, and from the entry of the judgment to the date of payment, and (3) by adding a provision thereto awarding the plaintiff an attorney's fee in the sum of $81,103; as so modified, the amended judgment is affirmed insofar as appealed and cross-appealed from, with costs to the plaintiff, the order dated June 24, 2008, is modified accordingly, and the matter is remitted to the Supreme Court, Orange County, for the entry of an appropriate amended judgment.

The appeal from the intermediate order dated June 24, 2008, must be dismissed. No appeal lies as of right from an order which does not decide a motion made on notice ( see CPLR 5701[a][2] ), and we decline to grant leave to appeal in view of the fact that a final judgment has been entered ( see generally Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d...