Capozzoli v. Capozzoli

Decision Date01 February 2011
Citation916 N.Y.S.2d 792,81 A.D.3d 584
PartiesJohn CAPOZZOLI, appellant, v. Celia CAPOZZOLI, respondent.
CourtNew York Supreme Court — Appellate Division
916 N.Y.S.2d 792
81 A.D.3d 584


John CAPOZZOLI, appellant,
v.
Celia CAPOZZOLI, respondent.


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

Feb. 1, 2011.

Kantrowitz, Goldhamer & Graifman, P.C., Chestnut Ridge, N.Y. (William T. Schiffman of counsel), for appellant.

Gaylor & Warmund, LLP, Lynbrook, N.Y. (C. William Gaylor III of counsel), for respondent.

81 A.D.3d 584

In an action to set aside the maintenance and child support provisions of a stipulation of settlement dated January 12, 2000, which was " incorporated and made a part of" a judgment dated January 19, 2000, the plaintiff former husband appeals from (1)

81 A.D.3d 585
an order of the Supreme Court, Rockland County (Berliner, J.), dated January 21, 2010, which, without a hearing, denied his motion to modify the judgment of divorce, a stipulation dated March 30, 2007, and a consent order of the same court dated June 1, 2007, so as to eliminate his obligation to pay maintenance and to reduce his child support obligation, and (2) an order of the same court dated May 26, 2010, which denied his motion, in effect, for leave to renew his prior motion.

ORDERED that the orders are affirmed, with one bill of costs.

Contrary to the plaintiff's contention, the Supreme Court properly denied, without a hearing, his motion to modify the judgment of divorce, the stipulation dated March 30, 2007, and the consent order dated June 1, 2007, so as to eliminate his obligation to pay maintenance and to reduce his child support obligation. With regard to that branch of the motion which was to eliminate his maintenance obligation, the plaintiff did not establish, prima facie, that continued enforcement of his maintenance obligation would create an extreme hardship ( see Klein v. Klein, 74 A.D.3d 753, 901 N.Y.S.2d 545; DiVito v. DiVito, 56 A.D.3d 601, 602, 867 N.Y.S.2d 334; Mahato v. Mahato, 16 A.D.3d 386, 790 N.Y.S.2d 409; Vinnik v. Vinnik, 295 A.D.2d 339, 742 N.Y.S.2d 673). In addition, with regard to that branch of the motion which was for a downward modification of his child support obligation, he did not establish, prima facie, that there had been a substantial, unanticipated, and unreasonable change in circumstances ( see Klein v. Klein, 74 A.D.3d 753, 901 N.Y.S.2d 545; Praeger v. Praeger, 162 A.D.2d 671, 673-674, 557 N.Y.S.2d 394).

Moreover, the Supreme Court correctly denied the plaintiff's subsequent motion, in effect, for leave to renew. "In general, a motion for leave to renew must be based...

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8 cases
  • Sanseri v. Sanseri
    • United States
    • United States State Supreme Court (New York)
    • April 6, 2015
    ...(3rd Dept.2014) (to justify changes there must be proof of a change to their current financial circumstances); Capozzoli v. Capozzoli, 81 A.D.3d 584, 916 N.Y.S.2d 792 (2nd Dept.2011). These post- Northrup statutory changes, considered as a package, are bright evidence that the Legislature, ......
  • Sanseri v. Sanseri
    • United States
    • United States State Supreme Court (New York)
    • April 6, 2015
    ...(3rd Dept.2014) (to justify changes there must be proof of a change to their current financial circumstances); Capozzoli v. Capozzoli, 81 A.D.3d 584, 916 N.Y.S.2d 792 (2nd Dept.2011). These post-Northrup statutory changes, considered as a package, are bright evidence that the Legislature, i......
  • Cangemi v. Burgan
    • United States
    • New York Supreme Court Appellate Division
    • February 1, 2011
    ...v. Weissman, 68 A.D.3d at 797-798, 890 N.Y.S.2d 615, quoting916 N.Y.S.2d 137Robles v. City of New York, 56 A.D.3d 647, 868 N.Y.S.2d 114).81 A.D.3d 584 Here, the defendant satisfied her prima facie burden of establishing her entitlement to judgment as a matter of law ( see Winegrad v. New Yo......
  • Schwaber v. Schwaber
    • United States
    • New York Supreme Court Appellate Division
    • January 31, 2012
    ...maintenance obligation would result in the extreme hardship necessary to warrant a downward modification ( see Capozzoli v. Capozzoli, 81 A.D.3d 584, 585, 916 N.Y.S.2d 792; Klein v. Klein, 74 A.D.3d 753, 901 N.Y.S.2d 545; DiVito v. DiVito, 56 A.D.3d 601, 602, 867 N.Y.S.2d 334; Mahato v. Mah......
  • Request a trial to view additional results

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