Bruzzese v. Bruzzese

• Decision Date: 23 March 2022
• Docket Number: 2018–10242, 2018–14752,Index No. 6760/11
• Parties: John BRUZZESE, respondent-appellant, v. Sylvia BRUZZESE, appellant-respondent.
• Court: New York Supreme Court — Appellate Division

203 A.D.3d 1007

165 N.Y.S.3d 115

John BRUZZESE, respondent-appellant,

v.Sylvia BRUZZESE, appellant-respondent.

2018–10242, 2018–14752

Index No. 6760/11

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

Argued—December 17, 2021

March 23, 2022

Sylvia Lembert, named herein as Sylvia Bruzzese, Richmond Hill, NY, appellant-respondent pro se.

Glenn W. Magnell, Goshen, N.Y. (Evan D. Zucker of counsel), for respondent—appellant.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, LINDA CHRISTOPHER, PAUL WOOTEN, JJ.

DECISION & ORDER

In a matrimonial action in which the parties were divorced by judgment dated August 25, 2015, (1) the defendant appeals, and the plaintiff cross-appeals, from an order of the Supreme Court, Orange County (Lori Currier Woods, J.), dated June 25, 2018, and (2) the defendant appeals from an order of the same court dated August 23, 2018. The order dated June 25, 2018, insofar as appealed from, granted those branches of the plaintiff's motion which were for a credit of $9,683.63 for overpayment of child support and for an award of child support to the extent of directing payment by the defendant to the plaintiff in the amount of $1,236.18 per month, and denied those branches of the defendant's cross motion which were for an award of $2,075.08 purportedly held in escrow by the plaintiff's counsel, for the appointment of a receiver to immediately sell the plaintiff's residence, for the sequestration of the plaintiff's assets, for a finding of civil contempt against the plaintiff and his counsel, for the imposition of sanctions against the plaintiff and his counsel, and for an award of attorneys’ fees. The order dated August 23, 2018, denied the defendant's motion for leave to renew and reargue her opposition to those branches of the plaintiff's prior motion which were for a credit of $9,683.63 for overpayment of child support and for an award of child support, and those branches of her prior cross motion which were for an award of $2,075.08 purportedly held in escrow by the plaintiff's counsel, for the appointment of a receiver to immediately sell the plaintiff's residence, for the sequestration of the plaintiff's assets, for a finding of civil contempt against the plaintiff and his counsel, for sanctions against the plaintiff and his counsel, and for an award of attorneys’ fees.

ORDERED that the appeal from so much of the order dated June 25, 2018, as granted that branch of the plaintiff's motion which was for a credit of $9,683.63 for overpayment of child support, and denied that branch of the defendant's cross motion which was for an award of $2,075.08 purportedly held in escrow by the plaintiff's counsel, is dismissed; and it is further,

ORDERED that the cross appeal from the order dated June 25, 2018, is dismissed as abandoned; and it is further,

ORDERED that the appeal from so much of the order dated August 23, 2018, as denied that branch of the defendant's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated June 25, 2018, is affirmed insofar as reviewed on the appeal by the defendant; and it is further,

ORDERED that the order dated August 23, 2018, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The plaintiff's cross appeal from the order dated June 25, 2018, must be dismissed as abandoned, as the plaintiff's brief does not request modification or reversal of any portion of that order (see Culen v. Culen, 157 A.D.3d 926, 927, 69 N.Y.S.3d 702 ).

This action for a divorce and ancillary relief was commenced in 2011. In a decision rendered in 2014 after a lengthy trial, the Supreme Court, inter alia, determined issues of equitable distribution (hereinafter the 2014 decision). A judgment of divorce dated August 25, 2015, incorporated that decision, and directed the parties to comply with its terms. Upon the plaintiff's appeal, this Court, in a decision and order dated July 12, 2017, among other things, did not disturb the equitable distribution provisions of the judgment of divorce (see Bruzzese v. Bruzzese, 152 A.D.3d 563, 61 N.Y.S.3d 18 ). Thereafter, in an order dated February 27, 2018, the Supreme Court, inter alia, directed the plaintiff to pay to the defendant $3,000 per month, commencing on February 1, 2018, and $10,000 once per year, commencing on April 1, 2018, until the plaintiff paid the defendant her equitable distribution in full pursuant to the 2014 decision.

In or around February 2018, the plaintiff moved, inter alia, for a $9,683.63 credit against the defendant's equitable distribution award, representing child support payments for which he was not credited, as well as for an award of child support. In or around March 2018, the defendant cross-moved, among other things, for an award of $2,075.08 purportedly held in escrow by the plaintiff's counsel, for the appointment of a receiver to immediately sell the plaintiff's residence, for the sequestration of the plaintiff's assets, for a finding of civil contempt against the plaintiff and his counsel, for the imposition of sanctions against the plaintiff and his counsel, and for an award of attorneys’ fees.

In an order dated June 25, 2018, the Supreme Court, inter alia, granted that branch of the plaintiff's motion which was for a credit in the sum of $9,683.63 against the defendant's equitable distribution award. The court also granted that branch of the plaintiff's motion which was for an award of child support to the extent of directing the defendant to pay child support in the sum of $1,236.18 per month, commencing on July 15, 2018, having denied the plaintiff's request to increase the amount of the defendant's imputed income. The court denied that branch of the defendant's cross motion which was for an award of $2,075.08 purportedly held in escrow by the plaintiff's counsel. The court also denied those branches of the defendant's cross motion which were for the appointment of a receiver, for the sequestration of the plaintiff's assets, for a finding of civil contempt against the plaintiff and his counsel, for the imposition of sanctions against the plaintiff and his counsel, and for an award of attorneys’...