K.L. v. I.L.

Docket NumberIndex No. 55305/2023
Decision Date07 December 2023
PartiesK.L., Plaintiff, v. I.L., Defendant.
CourtNew York Supreme Court

2023 NY Slip Op 51411(U)

K.L., Plaintiff,
v.

I.L., Defendant.

Index No. 55305/2023

Supreme Court, Richmond County

December 7, 2023


Unpublished Opinion

Counsel for the Plaintiff: Gregory Gorodetsky, GREG C. GORODETSKY ATTORNEY AT LAW.

Counsel for the Defendant: Kelsey Williams, Rudyuk Law Firm, P.C.

RONALD CASTORINA, JR., J.

The following e-filed documents listed on NYSCEF (Motion #005) numbered 91-117, 119 were read on this motion.

Upon the foregoing documents, and upon consideration of oral argument conducted on December 4, 2023, Motion Sequence #005 is resolved as follows:

It is hereby ORDERED, that the Defendant's request for leave to renew Plaintiff's Motion Sequence #001, dated July 31, 2023, is GRANTED pursuant to CPLR § 2221 [e]; and it is further, ORDERED, that the Memorandum Decision and Order, pendente lite, rendered September 20, 2023, only as pertaining to maintenance, pendente lite, child support, pendente lite, and the parties' pro rata shares is vacated; and it is further, ORDERED, that Plaintiff's request for monthly spousal maintenance, pendente lite, is DENIED without prejudice to renew; and it is further, ORDERED, that the Defendant receive a credit for spousal maintenance payments made in accord with the Memorandum Decision and Order, dated September 20, 2023; and it is further, ORDERED, that Plaintiff's request for child support is GRANTED and Defendant is ORDERED, to pay to Plaintiff child support retroactive to September 1, 2023 in the monthly sum of $2,031.16 [Two Thousand Thirty-One Dollars and Sixteen Cents], pendente lite, subject to reallocation at trial; and it is further, ORDERED, that the Defendant receive a credit for child support payments made in accord with the Memorandum Decision and Order, dated September 20, 2023; and it is further, ORDERED, that Plaintiff's request for allocation of the parties' pro rata share of the child's add-on expenses is GRANTED in that, commencing the date of this Memorandum Decision and Order, Plaintiff is responsible for 40% of all of the child's add-on expenses, pendente lite, subject to reallocation at trial, and Defendant is responsible for 60% of all child add-on expenses, pendente lite, subject to reallocation at trial, and it is further;

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

Memorandum Decision

I. Statement of Facts

Plaintiff K.L. and Defendant I.L. were married in a civil ceremony in the City of New York on May 16, 2014. There are two children of the marriage, to wit: A.L., DOB 12/24/2019, and S.L., DOB: 12/24/2013. The Plaintiff commenced this action for divorce on or about June 6, 2023. On November 20, 2023, Defendant filed Motion Sequence #005 by Order to Show Cause.

Defendant seeks (a) leave to renew Plaintiff's Motion Sequence #001, dated July 31, 2023 (Motion #001), pursuant to CPLR § 2221 [e], which resulted in the Memorandum Decision and Order, pendente lite, rendered September 20, 2023, and, upon renewal, vacating said Memorandum Decision and Order as pertaining to maintenance, pendente lite, and child support, pendente lite, and; (b) determination of maintenance, pendente lite, and child support, pendente lite, upon renewal of Plaintiff's Motion Sequence #001 be retroactive to the date of filing of the application, and credit to the Defendant for the payments he made according to the Memorandum Decision and Order, pendente lite, rendered September 20, 2023, and (c) such other and further relief as the Court may deem just and proper.

Plaintiff filed a cross-motion on December 4, 2023. Plaintiff withdrew cross motion on the record on December 4, 2023, and requested the motion be accepted only as opposition to Defendant's Motion Sequence #005. Oral argument was heard on Motion Sequence #005 on December 4, 2023. This is a Decision and Order on Motion Sequence #005.

II. Renew Motion Sequence #001 and Vacate Decision and Order

"Pursuant to CPLR § 2221, a motion for leave to renew 'shall be based upon new facts not offered on the prior motion that would change the prior determination' (see CPLR § 2221 [e] [2]) and 'shall contain reasonable justification for the failure to present such facts on the prior motion' (see CPLR § 2221 [e] [3])" (see Groman v Fleyshmakher, 2023 NYAppDiv LEXIS 5789 [2d Dept 2023] quoting Deutsche Bank Natl. Trust Co. v Galloway, 214 A.D.3d 625 [2d Dept 2023] citing Ferraro Foods, Inc. v Guyon, Inc., 165 A.D.3d 628 [2d Dept 2018])."[A] motion to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (see HSBC Bank USA, N.A. v. Krebs, 219 A.D.3d 1417 [2d Dept 2023] quoting Hernandez v Nwaishienyi, 148 A.D.3d 684 [2d Dept 2017]).

"A motion for leave to renew or reargue is addressed to the sound discretion of the Supreme Court" (see Kugler v Kugler, 174 A.D.3d 876 [2d Dept 2019] quoting Central Mtge. Co. v McClelland, 119 A.D.3d 885 [2d Dept 2014]).

"A motion for leave to renew 'shall be based upon new facts not offered on the prior motion that would change the prior determination' and 'shall contain reasonable justification for the failure to present such facts on the prior motion" Lindbergh v SHLO 54, LLC, 128 A.D.3d 642 [2d Dept 2015] quoting CPLR § 2221 [e] [2], [3]; citing Rakha v Pinnacle Bus Servs., 98 A.D.3d 657 [2d Dept 2012]; DeMarquez v Gallo, 94 A.D.3d 1039 [2d Dept 2012]; Matter of Choy v. Mai Ling Lai, 91 A.D.3d 772 [2d Dept 2012]).

"The new or additional facts either must have not been known to the party seeking renewal or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion" (see Deutsche Bank Trust Co. v. Ghaness, 100 A.D.3d 585 [2d Dept 2012] citing Dervisevic v Dervisevic, 89 A.D.3d 785 [2d Dept 2011]; Rowe v. NYCPD, 85 A.D.3d 1001 [2d Dept 2011]).

"Although a motion for leave to renew generally must be based on newly-discovered facts, this requirement is a flexible one, and a court has the discretion to grant renewal upon facts known to the movant at the time of the original motion, provided that the movant offers a reasonable justification for the failure to submit the additional facts on the original motion" (see Castor v Cuevas, 137 A.D.3d 734 [2d Dept 2016] quoting Matter of Allstate Ins. Co. v. Liberty Mut. Ins., 58 A.D.3d 727 [2d Dept 2009]; citing Matter of Osorio v Motor Veh. Acc. Indem. Corp., 112 A.D.3d 831 [2d Dept 2013]; Deutsche Bank Trust Co. v Ghaness, 100 A.D.3d 585 [2d Dept 2012]; Dervisevic v Dervisevic, 89 A.D.3d 785 [2d Dept 2011]; Gonzalez v Vigo Constr. Corp., 69 A.D.3d 565 [2d Dept 2010]). "What is considered a 'reasonable justification' is within the Supreme Court's discretion" (see id quoting Heaven v McGowan, 40 A.D.3d 583 [2d Dept 2007]; citing Calle v Zimmerman, 133 A.D.3d 809 [2d Dept 2015]).

On August 17, 2023, when Defendant filed opposition to Plaintiff's Motion Sequence #001, Defendant was not in possession nor was the Defendant able to obtain at that time certain bank account statements, credit card statements, and other financial information related to Plaintiff's income. On October 23, 2023, Defendant was able to obtain certain financial documentation in response to a Subpoena Duces Tecum served on J.P. Morgan Chase, which have been attached to this motion as Exhibit B (NY St Cts Filing [NYSCEF] Doc No. 94).

Accordingly, Defendant's request for leave to renew Plaintiff's Motion Sequence #001, dated July 31, 2023, is GRANTED pursuant to CPLR § 2221 [e]; and it is further, ORDERED, that the Memorandum Decision and Order, pendente lite, rendered September 20, 2023, only as pertaining to maintenance, pendente lite, child support, pendente lite, and the parties' pro rata shares is vacated.

III. Imputation of Income

"Income shall...

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