Lamberti v. Lamberti
| Decision Date | 05 February 1990 |
| Citation | 551 N.Y.S.2d 46,158 A.D.2d 449 |
| Parties | Grace Ann LAMBERTI, Respondent, v. John LAMBERTI, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Fensterman & Fensterman, Lake Success (Howard Fensterman, of counsel), for appellant.
Before BRACKEN, J.P., and LAWRENCE, HARWOOD and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
In a matrimonial action in which the parties were divorced by judgment entered June 30, 1982, the defendant husband appeals from so much of an order of the Supreme Court, Suffolk County (Colby, J.), dated April 14, 1988, as directed him to pay one-third of the heating and electric bills for the marital residence for the months of December 1987 through February 1988 and thereafter for the months during which the unit in the marital residence is rented by him to a tenant. The appeal brings up for review so much of an order of the same court, dated March 27, 1989, as, upon reargument, adhered to the original determination (CPLR 5517[b].
ORDERED that the appeal from the order dated April 14, 1988, is dismissed, without costs or disbursements, as that order was superseded by the order dated March 27, 1989, made upon reargument; and it is further,
ORDERED that the order dated March 27, 1989, is reversed insofar as reviewed, on the law, without costs of disbursements, the provisions directing the defendant to pay one-third of the heating and electric bills for the marital residence for the months of December 1987 through February 1988 and thereafter for the months during which the unit in the marital residence is rented by him to a tenant are deleted, and the order dated April 14, 1988, is modified accordingly.
The parties' separation agreement, which was not merged in the judgment of divorce, provided, in pertinent part, that the defendant was to pay the plaintiff wife the sum of $250 per month for her support and maintenance. The defendant was also to pay an additional sum of $225 per month to the plaintiff, to be used to pay certain utility bills such as electricity for the marital residence, which included a rental unit. The defendant was to receive the rental income, if any, and pay other carrying charges of the marital residence. Consequently, absent the defendant's consent, and as long as the agreement remained unimpeached, the Supreme Court could not modify or alter the term regarding the payment of the heating and electric bills for the marital residence, which included the rental unit (see, Goldman v....
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