Hirschhorn v. Hirschhorn

• Decision Date: 08 June 2010
• Citation: 74 A.D.3d 886,902 N.Y.S.2d 375
• Parties: Alan K. HIRSCHHORN, respondent, v. Barbara HIRSCHHORN, appellant.
• Court: New York Supreme Court — Appellate Division

902 N.Y.S.2d 375

74 A.D.3d 886

Alan K. HIRSCHHORN, respondent,

v.Barbara HIRSCHHORN, appellant.

Supreme Court, Appellate Division, Second Department, New York.

June 8, 2010.

Kantor, Davidoff, Wolfe, Mandelker, Twomey & Gallanty, P.C., New York, N.Y. (Steven W. Wolfe, Gary Hoppe, Lawrence A. Mandelker, and Daniel M. Hirsch of counsel), for appellant.

Jaspan Schlesinger LLP, Garden City, N.Y. (Lisa M. Golden of counsel), for respondent.

In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Nassau County (Brown, J.), entered March 25, 2009, as, upon a decision of the same court dated October 28, 2008, made after a nonjury trial, in effect, dismissed her counterclaim.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and the Appellate Division may render the judgment it finds warranted by the facts, bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses ( see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809; Powers v. Wilson, 56 A.D.3d 639, 640-641, 868 N.Y.S.2d 693; Rosenberg v. Rosenberg, 44 A.D.3d 1022, 1024, 845 N.Y.S.2d 371). We find no basis in the record to disturb the Supreme Court's determination that the plaintiff was not equitably estopped from enforcing a provision of the parties' separation agreement which precluded recovery by the defendant on the counterclaim.

The defendant's remaining contentions are either without merit or not properly before this Court.

RIVERA, J.P., FLORIO, MILLER and AUSTIN, JJ., concur.