Gordon v. Gordon

• Decision Date: 01 April 1985
• Citation: 110 A.D.2d 623,487 N.Y.S.2d 574
• Parties: Alice GORDON, Plaintiff, v. James GORDON, Defendant; Alice Ehrenreich, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 574

487 N.Y.S.2d 574

110 A.D.2d 623

Alice GORDON, Plaintiff, v. James GORDON, Defendant Alice Ehrenreich, Appellant.

Supreme Court, Appellate Division Second Department.

April 1, 1985.

Gordon, Weinstein & Grossman, New York City (Murray A. Gordon, New York City, of counsel), for appellant.

Before TITONE, J.P., and THOMPSON, O'CONNOR and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, the appeal, as limited by the appellant's brief, is from so much of an order of the Supreme Court, Queens County, dated June 8, 1984, as, upon granting reargument and renewal of a prior motion, denied the motion, inter alia, (1) to substitute the appellant as the legal representative of the estate of the plaintiff Alice Gordon and to substitute certain other persons as the legal representatives of the defendant James Gordon (both of the named parties are deceased) in their place and stead, (2) to direct the estate of James Gordon to pay two money judgments to the estate of Alice Gordon, (3) to enter a money judgment in the amount of $53,625 in favor of the estate of Alice Gordon, representing arrears in support payments for the period from September, 1974 through December, 1977, and (4) permitting execution of the money judgments against money or property of the estate of James Gordon held by the Credit Suisse.

Order affirmed insofar as appealed from, without costs or disbursements, and without prejudice to an application for relief in the appropriate forum, as provided herein.

In 1959, a judgment of separation was awarded by the Supreme Court, Queens County, which, inter alia, directed James Gordon (hereinafter referred to as James) to pay $1,375 per month for the support and maintenance of Alice Gordon, his wife (hereinafter referred to as Alice), and their two children. James ceased making support payments in 1965 and on May 6, 1966, Alice obtained a money judgment against him in the sum of $15,125, representing arrears for the period from June, 1965 to April, 1966. Thereafter, proceedings were commenced to enforce that judgment in England, where James had established a permanent residence and domicile, and an English judgment was obtained. A second judgment representing arrears in support from May, 1966 to August, 1973, in the principal sum of $121,000, was entered in Queens County on October 10, 1974. No proceedings were brought to enforce that judgment. It appears that the judgments remain unsatisfied, allegedly because James secreted his assets during his lifetime.

Alice died on December 17, 1977. The appellant, Alice Ehrenreich, Alice Gordon's aunt, was appointed executrix of the estate by the Surrogate's Court, Queens County. James died in England on December 25, 1981 and his estate is being administered there.

By order to show cause, Alice Ehrenreich sought, inter alia, to be substituted as plaintiff in the underlying matrimonial action, to substitute the fiduciaries of James' estate as defendants, for a further money judgment, pursuant to Domestic Relations Law § 244 for accrued arrears, and for permission to execute the judgments against funds of James held by the Credit Suisse, a bank which maintains offices in New York, London and Switzerland. The Supreme Court, Queens County, denied the requested relief in all respects. Although we disagree with its reasoning, for procedural reasons the order should be affirmed insofar as appealed from, without prejudice to further proceedings in accordance herewith.

These claims should be pursued in the Surrogate's Court. It would therefore be superfluous to grant substitution of the personal representatives in place of the deceased parties at this time in the instant Supreme Court action. The cause of action for accrued alimony and to enforce the previously obtained judgments survives James' death (EPTL 11-3.1; Van Ness v. Ransom, 215 N.Y. 557, 109 N.E. 593; Joffe v. Spector, 27 A.D.2d 406, 279 N.Y.S.2d 905) and inasmuch as the court had personal jurisdiction over James, it has personal jurisdiction over his executors (CPLR 302[b]; see Rosenfeld v. Hotel Corp. of America, 20 N.Y.2d 25, 281 N.Y.S.2d 308, 228 N.E.2d 374). However, although substitution could have been directed (CPLR 1015; see Matter of Martz [Martz], 12 A.D.2d 786, 209 N.Y.S.2d 617; 2 Weinstein-Korn-Miller, N.Y.Civ.Prac, par. 1015.07; cf. Topal v. BFG Corp., 108 A.D.2d 849, 485 N.Y.S.2d 352), such relief is not now necessary.

Contrary to the determination of Special Term, the claims are not time barred. The 20-year Statute of Limitations (CPLR 211[b] ) applies to court-ordered support payments that a decedent was required to, but did not, pay (see CPLR 105[q]; Matter of Haggart, 71 Misc.2d 157, 335 N.Y.S.2d 751, affd. 41 A.D.2d 1030, 346 N.Y.S.2d 212). CPLR 210(a) is designed to extend periods of limitation that would otherwise expire shortly after a plaintiff's death. It does not operate to reduce statutory periods that would otherwise have...