Gann v. Gann
| Decision Date | 14 November 1996 |
| Citation | 649 N.Y.S.2d 154,233 A.D.2d 188 |
| Parties | Sherry GANN, Plaintiff-Appellant, v. Michael GANN, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Lewis C. Edelstein, for Plaintiff-Appellant.
David H. Pikus, for Defendant-Respondent.
Before MILONAS, J.P., and KUPFERMAN, ROSS, WILLIAMS and TOM, JJ.
Judgment, Supreme Court, New York County (David Saxe, J.), entered April 5, 1995, which, after a nonjury trial, inter alia, awarded defendant husband, as his separate property, all payments received pursuant to his disability insurance policies, and awarded plaintiff wife, inter alia, $2,500 monthly maintenance retroactive to the commencement of the action and terminating one year from entry of judgment (see, 163 Misc.2d 345, 620 N.Y.S.2d 707), unanimously affirmed, without costs.
The trial court correctly concluded that the proceeds of the defendant husband's disability insurance policies, whose premiums were paid by him from his separate funds, were his separate property since they constituted compensation for his personal injury (see, Fleitz v. Fleitz, 200 A.D.2d 874, 606 N.Y.S.2d 825, lv. dismissed 84 N.Y.2d 849, 617 N.Y.S.2d 138, 641 N.E.2d 159, 85 N.Y.2d 889, 626 N.Y.S.2d 753, 650 N.E.2d 411; Solomon v. Solomon, 206 A.D.2d 971, 615 N.Y.S.2d 949) and did not have a deferred income component as in the case of disability pensions (see, Dolan v. Dolan, 78 N.Y.2d 463, 577 N.Y.S.2d 195, 583 N.E.2d 908).
The court did not improvidently exercise its discretion in limiting the award of permanent maintenance in light of the brief duration of this childless marriage, receipt of a significant distributive award by plaintiff wife and her failure to reasonably explain her inability to procure employment or to avail herself of the opportunity for retraining afforded by the pendente lite award.
On the evidence presented, the trial court was entitled to conclude that the wife had dissipated or secreted the jewelry and furs whose value she had declared in her applications for insurance, and therefore properly attributed the value of these assets to her in calculating the distributive award (see, Domestic Relations Law § 236[B][5][d][11], [12]; Mattwell v. Mattwell, 194 A.D.2d 715, 718, 600 N.Y.S.2d 98).
We have considered plaintiff wife's other contentions and find them to be without merit.
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