Guma v. Guma

• Decision Date: 20 July 1987
• Citation: 132 A.D.2d 645,518 N.Y.S.2d 19
• Parties: Christine Kaulinas GUMA, Respondent, v. Robert Joseph GUMA, Defendant, Dorothy Guma, et al., nonparty-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 19

518 N.Y.S.2d 19

132 A.D.2d 645

Christine Kaulinas GUMA, Respondent, v. Robert Joseph GUMA, Defendant, Dorothy Guma, et al. nonparty-Appellants.

Supreme Court, Appellate Division,

Second Department.

July 20, 1987.

Lerner, Gordon & Hirsch, P.C., Carle Place (Stanley Hirsch of counsel), for nonparty-appellants.

Kramer, Eisenberg & Fisherman, Brooklyn (Mark Fisherman of counsel), for respondent.

Before MANGANO, J.P., and EIBER, SULLIVAN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the paternal grandparents appeal, (1) from an order of the Supreme Court, Nassau County (Robbins, J.), dated October 31, 1986, which denied their motion for permission to intervene pursuant to CPLR 1013, and (2) from so much of an order of the same court, dated March 10, 1987, as awarded the plaintiff wife $2,000 in counsel fees payable by them.

ORDERED that the order dated October 31, 1986, is reversed, on the law and in the exercise of discretion, without costs or disbursements, the motion for permission to intervene is granted, and the matter is remitted to a Justice other than the Justice who previously presided over this matter; and it is further,

ORDERED that the order dated March 10, 1987, is reversed insofar as appealed from, on the law, without costs or disbursements, and the plaintiff's application for counsel fees payable by the appellants is denied.

There was evidence before the court of first instance which indicated that there was a genuine issue as to whether "extraordinary circumstances" existed which would warrant its considering if the best interests of the child would be served by granting custody to the appellants, the child's paternal grandparents (see, Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 548, 387 N.Y.S.2d 821, 356 N.E.2d 277; Matter of Tyrrell v. Tyrrell, 67 A.D.2d 247, 248, 415 N.Y.S.2d 723, affd. 47 N.Y.2d 937, 419 N.Y.S.2d 969, 393 N.E.2d 1041; Scott L. v. Bruce N., 126 A.D.2d 157, 513 N.Y.S.2d 121; Matter of Nadia Kay R., 125 A.D.2d 674, 677, 509 N.Y.S.2d 862, lv. denied 69 N.Y.2d 608, --- N.Y.S.2d ----, 507 N.E.2d 322). The appellants, thus, had a "real and substantial interest" in the outcome of the matrimonial action which gave them a sound basis for seeking to intervene (see, Matter of Norstar Apartments v. Town of Clay, 112 A.D.2d 750, 751, 492 N.Y.S.2d 248; Vantage Petroleum v. Board of Assessment Review, 91 A.D.2d 1037, 458 N.Y.S.2d 632, affd. 61 N.Y.2d 695, 472 N.Y.S.2d 603, 460 N.E.2d 1088; Plantech Housing v. Conlan, 74 A.D.2d 920, 426 N.Y.S.2d 81, appeal dismissed 51 N.Y.2d 862, 433 N.Y.S.2d 1018, 414 N.E.2d 398). The court's finding that because of the hostility between the plaintiff and the appellants, their participation in this action would "obfuscate" the issues, and "encumber" the proceeding, is not controlling. While the relationship between the appellants and the plaintiff is seemingly acrimonious,...