Hasegawa v. Hasegawa

• Decision Date: 22 January 2002
• Docket Number: 00-09353,2
• Parties: Kumiko Hasegawa, respondent-appellant, v Hiroyoshi Hasegawa, appellant-respondent. 2000-09353 2000-09354 2000-10880 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT Submitted -
• Court: New York Supreme Court — Appellate Division

Kumiko Hasegawa, respondent-appellant v Hiroyoshi Hasegawa, appellant-respondent

2000-09353

2000-09354

2000-10880

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Submitted - January 3, 2002

Decided on January 22, 2002

Sankel, Skurman & McCartin, LLP, New York, N.Y. (Claudio Dessberg of counsel), for appellant-respondent.

Gruberg, McKay & Stone, Pleasantville, N.Y. (Paul D. Stone of counsel), for respondent-appellant.

DECISION & ORDER

GLORIA GOLDSTEIN, J.P.

LEO F. McGINITY

DANIEL F. LUCIANO

STEPHEN G. CRANE, JJ.

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from (1) a decision of the Supreme Court, Westchester County (Shapiro, J.), dated May 1, 2000, (2) an order of the same court, entered August 7, 2000, which denied his motion for renewal, and (3) stated portions of a judgment of the same court, dated October 16, 2000, which, inter alia, distributed the marital property in accordance with the decision dated May 1, 2000, and the plaintiff cross-appeals from so much of the judgment as, upon the denial of those branches of her cross motion which were for alleged arrears of pendente lite maintenance and child support, failed to award her arrears of pendente lite maintenance and child support.

ORDERED that on the court's own motion, the notice of cross appeal from so much of the order entered August 7, 2000, as denied those branches of the plaintiff's cross motion which were for arrears of pendente lite maintenance and child support is deemed to be a premature notice of appeal from the judgment (see, CPLR 5520[c]); and it is further,

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v Green Constr. Corp., 100 A.D.2d 509); and it is further,

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is modified by deleting the provision thereof denying that branch of the plaintiff's cross motion which was for a judgment for arrears of pendente lite child support; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, and the matter is remitted to the Supreme Court, Westchester County, for a determination of the defendant's application for downward modification of pendente lite child support, and a new determination with respect to that branch of the plaintiff's cross motion which was for a judgment for arrears of pendente lite child support; and it is further,

ORDERED that the order entered August 7, 2000, is modified accordingly; and it is further,

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

The appeal from the intermediate order must be dismissed because no appeal lies from an order denying renewal of a decision (see, DeFalco v JRS Confectionary, 118 A.D.2d 752, 753). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a][1]).

In defiance of a temporary restraining order, the defendant transferred his New York business, Manshion Joho Center, Inc. (hereafter the New York business), which included title to the marital residence, to third parties. The evidence conclusively established through a tape-recorded conversation that the defendant transferred these marital assets to evade the plaintiff's claims to equitable distribution. The plaintiff joined those third parties as codefendants in the instant action (see, Friedman v Friedman, 125 A.D.2d 539), and served an amended verified complaint asserting an additional cause of action to set aside the fraudulent conveyance. The plaintiff reached a settlement with the other defendants in open court. The judgment of divorce deemed that settlement the plaintiff's "separate property", which represented her "equitable interest" in former marital property.

The plaintiff's cause of action to set aside the fraudulent conveyance accrued after the commencement of the divorce action. Consequently, the settlement may be deemed her separate property (see, Domestic Relations Law § 236[B][1][c]; Diener v Diener, 281 A.D.2d 385; Stempler v Stempler, 200 A.D.2d 733). The defendant, who admitted taking part in the transfer...