Berson v. Berson

• Decision Date: 18 October 1999
• Citation: 696 N.Y.S.2d 81
• Parties: David BERSON, respondent, v. Jeanne BERSON, appellant.
• Court: New York Supreme Court — Appellate Division

Page 81

696 N.Y.S.2d 81

David BERSON, respondent, v. Jeanne BERSON, appellant.

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

Oct. 18, 1999.

John P. DiMascio, Garden City, N.Y. (Jeffrey S. Chang of counsel), for appellant.

Douglas R. Rothkopf, Garden City, N.Y., for respondent.

LAWRENCE J. BRACKEN, J.P., WILLIAM D. FRIEDMANN, GLORIA GOLDSTEIN and LEO F. McGINITY, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action in which the parties were divorced by judgment dated July 23, 1997, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (McCabe, J.), entered July 15, 1998, as granted the plaintiff's motion to the extent of directing a specific visitation schedule for the summer of 1998, amended the judgment by providing specified guidelines for future summer visitation should the parties fail to agree on a visitation schedule, and directed that future applications would not be accepted without prior consultation with the court.

ORDERED that the appeal from so much of the order as directed a specific visitation schedule for the summer of 1998 is dismissed as academic; and it is further,

ORDERED that the order is affirmed insofar as reviewed; and it is further

ORDERED that the plaintiff is awarded one bill of costs.

The defendant contends that the court erred when it set forth guidelines for future summer visitation if the parties fail to agree on a visitation schedule. We disagree. It was within the court's discretion to amend its prior judgment to set forth guidelines for such visitation, and the amendment did not affect a substantial right of either party (see, CPLR 5019[a]; Kiker v. Nassau County, 85 N.Y.2d 879, 881, 626 N.Y.S.2d 55, 649 N.E.2d 1199; Stannard v. Hubbell, 123 N.Y. 520, 527, 25 N.E. 1084; Herpe v. Herpe, 225 N.Y. 323, 327, 122 N.E. 204; Shroid Constr. v. Dattoma, 250 A.D.2d 590, 593, 672 N.Y.S.2d 389; Irving Trust Co. v. Seltzer, 265 App.Div. 696, 698, 40 N.Y.S.2d 451; see, e.g., Ungar v. Ensign Bank, 196 A.D.2d 204, 208, 608 N.Y.S.2d 405; see also, Barkakos v. Avellini, 185 A.D.2d 805, 587 N.Y.S.2d 844).

Although public policy generally mandates free access to the courts (see, Sassower v. Signorelli, 99 A.D.2d 358, 359, 472 N.Y.S.2d 702; Matter of Shreve v. Shreve, 229 A.D.2d 1005, 645 N.Y.S.2d 198), the court's direction that future applications would not be accepted without prior consultation with the court was appropriate under these circumstances (s...