Maitland v. Maitland

• Jurisdiction: New York,United States
• Court: New York Supreme Court — Appellate Division
• Citation: Maitland v. Maitland, 220 A.D.3d 762, 197 N.Y.S.3d 569 (N.Y. App. Div. 2023)
• Docket Number: 2021–00644, 2021–02896,Index No. 724404/20
• Decision Date: 11 October 2023
• Parties: Delroy MAITLAND, appellant, v. Gwendolyn MAITLAND, respondent.
• topic: Contracts,Family Law,Civil Procedure,Real Estate

220 A.D.3d 762

197 N.Y.S.3d 569

Delroy MAITLAND, appellant,

v.Gwendolyn MAITLAND, respondent.

2021–00644, 2021–02896

Index No. 724404/20

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

Argued—February 23, 2023

October 11, 2023

Lipsky Bresky & Lowe LLP, Garden City, NY (Wendy L. Lipsky of counsel), for appellant.

BETSY BARROS, J.P., ROBERT J. MILLER, LARA J. GENOVESI, LILLIAN WAN, JJ.

DECISION & ORDER

In a matrimonial action in which the parties were divorced by judgment entered December 2, 2019, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Margaret Parisi McGowan, J.), dated November 16, 2020, and (2) an order of the same court entered March 30, 2021. The order dated November 16, 2020, insofar as appealed from, in effect, denied those branches of the plaintiff's motion which were to enforce the provisions of the judgment of divorce relating to the sale of real properties located on 220th Place and 230th Place in Queens, and the distribution of rental income from those properties and the proceeds of the sales, for the entry of a money judgment in the sums of $44,093.28 and $210, representing, respectively, 50% of the balance of the defendant's Capital One bank account as of the date of the commencement of the action and 50% of the costs of the appraisal of real property located in Manchester, Jamaica, and for an award of attorney's fees, and, upon, in effect, granting that branch of the plaintiff's motion which was to hold the defendant in contempt for failing to provide an accounting of income and expenses on the 220th Place and 230th Place properties, sua sponte, directed that in the event the defendant failed to serve and file an accounting within 30 days, the defendant would be appointed as receiver of the 230th Place property and the plaintiff would be appointed as receiver of the 220th Place property. The order entered March 30, 2021, insofar as appealed from, in effect, (1) granted that branch of the defendant's motion which was, in effect, for leave to reargue her opposition to that branch of the plaintiff's prior motion which was to hold her in contempt for failing to provide an accounting to the extent of vacating the determination in the order dated November 16, 2020, which, sua sponte, directed that in the event the defendant failed to serve and file an accounting within 30 days, the defendant would be appointed as receiver of the 230th Place property and the plaintiff would be appointed as receiver of the 220th Place property, and, thereupon, directing that the plaintiff be appointed as receiver of the 230th Place property and the defendant be appointed as receiver of the 220th Place property, and (2) denied the plaintiff's motion for leave to renew and reargue those branches of his prior motion which were to enforce the provisions of the judgment of divorce relating to the sale of real properties located on 220th Place and 230th Place in Queens, and the distribution of rental income from those properties and the proceeds of the sales, for the entry of a money judgment in the sums of $44,093.28 and $210, and for an award of attorney's fees.

ORDERED that the notice of appeal from so much of the order dated November 16, 2020, as, sua sponte, directed that in the event the defendant failed to serve and file an accounting within 30 days, the defendant would be appointed as receiver of the 230th Place property and the plaintiff would be appointed as receiver of the 220th Place property is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal from that portion of the order is granted (see CPLR 5701[c] ); and it is further,

ORDERED that the order dated November 16, 2020, is reversed insofar as appealed from, on the law, those branches of the plaintiff's motion which were to enforce the provisions of the judgment of divorce relating to the sale of real properties located on 220th Place and 230th Place in Queens, and the distribution of rental income from those properties and the proceeds of the sales, for the entry of a money judgment in the sums of $44,093.28 and $210, and for an award of attorney's fees are granted, so much of the order entered March 30, 2021, as, in effect, granted that branch of the defendant's motion which was, in effect, for leave to reargue her opposition to that branch of the plaintiff's prior motion which was to hold her in contempt for failing to provide an accounting to the extent of vacating the determination in the order dated November 16, 2020, which, sua sponte, directed that in the event the defendant failed to serve and file an accounting within 30 days, the defendant would be appointed as receiver of the 230th Place property and the plaintiff would be appointed as receiver of the 220th Place property, and, thereupon, directing that the plaintiff be appointed as receiver of the 230th Place property and the defendant be appointed as receiver of the 220th Place property is vacated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith, including the appointment of an independent receiver to sell the subject properties pursuant to the terms of the judgment of divorce, the entry of a money judgment in favor of the plaintiff and against the defendant in the sums of $44,093.28 and $210, and for a hearing and determination as to the appropriate amount of attorney's fees incurred by the plaintiff in bringing these motions; and it is further,

ORDERED that the appeal from so much of the order entered March 30, 2021, as, in effect, denied that branch of the plaintiff's motion which was for leave to reargue those branches of his prior motion which were to enforce the provisions of the judgment of divorce relating to the sale of real properties located on 220th Place and 230th Place in Queens, and the distribution of rental income from those properties and the proceeds of the sales, for the entry of a money judgment in the sums of $44,093.28 and $210, and for an award of attorney's fees is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the appeal from so much of the order entered March 30, 2021, as, in effect, (1) granted that branch of the defendant's motion which was, in effect, for leave to...