Hatoff v. Hatoff
| Decision Date | 31 January 1964 |
| Citation | 41 Misc.2d 1007,246 N.Y.S.2d 711 |
| Court | New York City Court |
| Parties | Shirley HATOFF, Plaintiff, v. Daniel HATOFF, Defendant. |
Peck & Heller, New York City, for plaintiff; Frank Heller, New York City, of counsel.
Israel Rubin, New York City, for defendant.
Motions Nos. 47 and 53 have been considered together.
Both plaintiff and defendant move for summary judgment.
The endorsement on the summons states that the action is to recover the sum of $4835 for accumulated arrears (April 5, 1961-October 7, 1963) for the support and maintenance of two minor children of the parties to the action, under a decree of divorce issued out of the Superior Court of Cook County, Illinois. The defendant's answer consists of a general denial and the defense of payment.
In opposition to the plaintiff's motion for summary judgment and in support of defendant's cross motion for summary judgment the defendant submits an affidavit of his attorney which does not dispute any of the facts alleged by the plaintiff. However, the defendant contends that, as a matter of law, the plaintiff cannot succeed in a New York court since (1) she has not pleaded the Illinois statute and (2) she has not reduced her claim for arrears to final judgment in the state of Illinois.
Under the provisions of Civil Practice Act, § 344-a, the Court had the power, in its discretion, to take judicial notice of the law of a sister state. However, courts, at times, were reluctant to exercise this power. But in Pfleuger v. Pfleuger, 304 N.Y. 148, 106 N.E.2d 495, the Court of Appeals held that the court at a special Term for Motions, in the exercise of its discretion, may take judicial notice of the law of another state, in passing on the sufficiency of a pleading.
Thus, even under the provisions of the Civil Practice Act, the defendant's first contention is valid only if the court, in its discretion, refused to take judicial notice of the law of Illinois.
The Advisory Committee on Practice and Procedure, considering judicial notice of law, stated that 'discretion to refuse to take judicial notice of the law of sister-states seems clearly unwarranted' (The Second Preliminary Report of the Advisory Committee on Practice and Procedure, Leg.Doc.1958, No. 13, p. 258).
Since September 1, 1963, the effective date of the CPLR, the taking of judicial notice of the law of a sister state is no longer discretionary with the court. CPLR Rule 4511(a) clearly mandates every court to take judicial notice of the public statutes of every state. CPLR Rule 4511(a) provides:
'Every court shall take judicial notice without request of the common law, constitutions and public statutes of the United States and of every state, territory and jurisdiction of the United States and of the official compilation of codes, rules and regulations of the state except those that relate solely to the organization or internal management of an agency of the state and of all local laws and county acts.'
Plaintiff did not have to plead the Illinois law, and defendant's first contention is, therefore, without merit.
The defendant's second contention is that the statutes of Illinois specifically provide that an award for alimony and maintenance may be altered by the court from time to time and, therefore, the plaintiff cannot sue upon the actual Illinois decree but must first reduce her claim for arrears to final judgment in the state of Illinois.
An examination of the law of the various states indicates that there is a definite conflict of authority as to the extent of the power of the courts to modify a decree. In some jurisdictions there is no inherent power to modify a decree prospectively. In many jurisdictions, including New York, the courts have the power to modify, cancel and reduce the arrears which have become due under the decree for alimony, maintenance or support prior to the filing of a petition for such modification cancellation or reduction. In other jurisdictions the courts do...
To continue reading
Request your trial
-
Smith v. Smith
...under a sister state decree of divorce or separation is undoubted. (Morse v. Morse, 3 Misc.2d 163, 153 N.Y.S.2d 957; Hatoff v. Hatoff, 41 Misc.2d 1007, 246 N.Y.S.2d 711.) The support orders of the courts of sister states, equivalent to our Family Court, would appear to stand on the same foo......
-
Clurman v. Clurman
...Corp. v. Aresty, 11 A.D.2d 331, 205 N.Y.S.2d 711, aff'd 11 N.Y.2d 696, 225 N.Y.S.2d 764, 180 N.E.2d 916). The case of Hatoff v. Hatoff, 41 Misc.2d 1007, 246 N.Y.S.2d 711, cited by the plaintiff is not in point. In that case it does not appear that any agreement or other document was incorpo......
-
Mittenthal v. Mittenthal
...they are not mandatorily required to receive full faith and credit (Nichols v. Nichols, 306 N.Y. 490, 119 N.E.2d 351; Hatoff v. Hatoff, 41 Misc.2d 1007, 246 N.Y.S.2d 711). This however, does not prevent this Court from nevertheless enforcing portions of the New Jersey judgment under the aut......
-
Oka v. Oka
...if it may not be modified retroactively so as to deprive a wife of alimony already accrued (Sistare v. Sistare, supra; Hatoff v. Hatoff, 41 Misc.2d 1007, 246 N.Y.S.2d 711; Morse v. Morse, 3 Misc.2d 163, 153 N.Y.S.2d 957). Under comity the same principles should apply to decrees of foreign c......